^"5, 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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I^iyf^    fo*^  y  &^< 


A    TREATISE 


ON    THE 


LAW  OF  THE  DOMESTIC  RELATIONS; 


EMBRACING 


HUSBAND  AND  WIFE,  PARENT  AND  CHILD,  GUARDIAN 

AND  WARD,  INFANCY,  AND  MASTER 

AND  SERVANT. 


BY 


JAMES     SCHOULER, 

AUTHOK  OF   TREATISES   ON    "  THE   LAW   OF   PERSONAL   PROPERTY,"     "  BAILMENTS, 
INCLUDING    CARRIERS,"    ETC. 


THIRD   EDITION. 


BOSTON: 

LITTLE,    BROWN,    AND    COMPANY- 

1882. 


Entered  according  to  Act  of  Congress,  in  tlio  year  1870, 

By  James   Schouler, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1874, 

By  James  Schouler, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 

Entered,  according  to  Act  of  Congress,  in  the  year  1882, 

By  James  Schouler, 

In  the  Office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 


U^•IVERSITY  Press  : 
John  Wilson  and  Son,  Cambridge. 


PREFACE   TO   THE   THIRD   EDITION. 


The  present  work'has  been  eighteen  months  out  of  print ; 
but  the  author  trusts  that  the  improvements  here  introduced 
will  compensate  for  the  delay  of  this  new  edition. 

Every  part  of  the  work  has  been  personally  revised  by  the 
author.  The  cases  reported  in  England  and  the  United 
States  since  the  previous  edition  have  been  incorporated  with 
the  text  or  foot-notes ;  many  of  the  decisions  here  cited  hav- 
ing been  published  daring  the  current  year,  and  while  these 
sheets  were  passing  through  the  printer's  hands.  Follow- 
ing the  late  custom,  the  author  has  also  divided  his  mate- 
rials by  sections,  inserting  head-lines  for  the  convenience  of 
the  reader.  The  text  is  still  kept  within  the  compass  of  a 
single  volume  ;  but  "  Husband  and  Wife,"  which  is  here  some- 
what abridged,  will  be  found  treated  by  the  author  at  length 
in  a  special  volume,  devoted  to  that  subject,  which  his  pub- 
lishers issued  a  few  months  ago. 

J.  S. 

Boston,  July  30,  1882. 


PREFACE   TO   THE   FIRST  EDITION. 


The  purpose  of  tlie  writer,  in  the  present  treatise,  is  to  fur- 
nish a  clear,  accurate,  and  comprehensive  analysis  of  the  law 
of  the  domestic  relations,  as  administered  in  England  and 
the  United  States  ab  the  present  day. 

To  accomplish  this  purpose,  and  at  the  same  time  not  to 
transcend  the  limits  of  a  single  volume,  was  not  easy.  It  be- 
came necessary  to  treat  of  principles  rather  than  details,  and 
to  avoid  matters  of  local  practice  altogether.  A  few  topics, 
such  as  curtesy  and  dower,  which  are  fully  discussed  in  other 
treatises,  have  been  for  the  same  reason  touched  upon  lightly, 
and  the  work,  on  the  whole,  made  elementary  in  its  method 
of  treatment,  though  at  the  same  time  practical.  The  lawyer 
who  misses  elaborate  head-notes  and  subdivisions  will  yet 
find  assistance  in  a  full  index  and  table  of  contents :  and 
what  has  been  lost  in  this  respect  is  gained  in  subject-matter. 
Especial  pains  have  been  taken  to  present  in  this  work  such 
topics,  pertaining  to  the  general  subject,  as  were  not  easily 
accessible  elsewhere. 

The  writer  has  freely  consulted  the  valuable  law  libraries  of 
the  Suifolk  Bar,  at  Boston,  and  of  Congress,  at  Washington, 
—  the  latter  being  the  most  extensive  in  this  country.  Among 
works  which  have  afforded  him  the  greatest  assistance  are 
Macqueen  on  Husband  and  Wife,  Peachey  on  Marriage  Settle- 
ments, Macpherson  on  Infancy,  and  Smith  on  Master  and  Ser- 
vant,—  treatises  of  acknowledged  merit  in  England,  though 
little  known  in  the  United  States.  Other  books,  more  familiar. 


vi  PREFACE  TO   THE  FIRST   EDITION. 

which  need  not  be  enumerated  at  length,  furnished  valuable 
material  in  certain  parts  of  this  work,  as  the  foot-notes  suffi- 
ciently indicate.  The  writer  deems  it  just  to  himself  to  add 
that  the  time-honored  treatise  of  Judge  Reeve  has  been  found 
of  little  service,  the  radical  changes  of  the  last  fifty  years 
rendering  new  labor,  new  materials,  and  a  new  plan  of  treat- 
ment absolutely  essential  to  meet  the  growing  wants  of  the 
age. 

If,  on  the  whole,  the  present  work  is  found  to  answer  its 
purpose,  in  the  judgment  of  his  professional  brethren,  the 
writer  will  cheerfully  acknowledge  such  errors  and  blemishes 
as  the  judicious  critic  may  kindly  point  out. 

JAMES   SCHOULER. 

Washingtox,  D.  C,  April  30,  1870. 


TABLE   OF   CONTENTS. 


PART  I. 

INTRODUCTORY  CHAPTER. 

Page 

§  1.     Domestic  Relations  defined;  Earlier  Writers 3 

§  2.     Plan  of  Classification,  &c 5 

§  3.     General  Characteristics  of  the  Law  of  Family 8 

§  4.     Law  of  Husband  and  Wife  now  in  a  Transition  State ;  Various 

Property  Schemes  stated 9 

§  5.     Common-Law  Property  Scheme 10 

§  6.     Civil-Law  Property  Scheme 11 

§  7.     Community  Property  Scheme 13 

§  8.     The  Recent  Married  Woman's  Acts 17 

§  9.     Marriage  and  Marital  Influence 17 

§  10.     General  Conclusions  as  to  the  Law  of  Husband  and  Wife  .     .  18 

§  11.     Remaining  Topics  of  the  Domestic  Relations ;  Modern  Changes  20 


PART  II. 

HUSBAND  AND  WIFE. 
CHAPTER  I. 


MARRIAGE. 

§  12.     Definition  of  Marriage 22 

§  13.     Marriage  more  than  a  Civil  Contract 22 

§  14.     Marriages  Void  and  Voidable 24 

§  15.     Essentials  of  Marriage 26 

§  16.     Disqualification  of  Blood  ;  Consanguinity  and  Affinity  ...  27 


VUl  TABLE   or   CONTENTS. 

Pago 

§  17.     Disqualification  of  Civil  Condition;  Race,  Color,  Social  Rank, 

Religion 29 

§  18.     Mental  Capacity  of  Parties  to  a  Marriage 30 

§19.     Physical  Capacity  of  Parties  to  Marriage;  Impotence,  &c.  .     .  33 

§  20.     Disqualification  of  Infancy 34 

§21.     Disqualification   of   Prior  Marriage   undissolved;   Polygamy; 

Bigamy 36 

§  22.     Same  Subject;  Impediments  following  Divorce 37 

§  23.     Force,  Fraud,  and  Error,  in  Marriage 38 

§24.     Force,  Fravid,  and  Error;  Subject  continued 42 

§  25.     Essential  of  Marriage  Celebration 43 

§§  26,  27.     Same  Subject;  Informal  Celebration 44,  49 

§§28,29.     Same  Subject ;  Formal  Celebration 51,54 

§  30.     Consent  of  Parents  and  Guardians 55 

§31.     Legalizing  Defective  Marriages;  Legislative  Marriage    ...  56 

§  32.     Restraints  upon  Marriage 57 

CHAPTER   II. 

EFFECT   OF   MARRIAGE  ;    PERSON   OF    THE    SPOUSE. 

§  33.     Effect  of  Marriage  ;  Order  of  Legal  Investigation      ....  58 
§  34.     Person  of  the  Spouse  ;  Coverture  Principle ;  Husband  Head  of 

Family 59 

§  35.     Duty  of  Spouses  to  adhere  or  live  together 61 

§  36.     Breach  by  Desertion,  &c. ;  Duty  of  making  Cohabitation  Tol- 
erable       62 

§  37.     The  Matrimonial  Domicile 63 

§  38.     Same  Subject ;  Husband's  Right  to  establish  Domicile  ...  64 

§  39.     Domicile  relative  to  Alien  and  Citizen 66 

§  40.     Change  of  Wife's  Name  by  Marriage       ........  66 

§  41.     Right  of  one  Spouse  to  the  other's  Society;  Suit  for  Entice- 
ment    67 

§  42.     Husband's  Duty  to  render  Support 69 

§  43.     Wife's  Duty  to  render  Services 69 

§  44.     Right  of  Chastisement  and  Correction 69 

§  45.     Husband's  Right  to  Gentle  Restraint 71 

§  46.     Regulation  of  Household,  Visitors,  &c 72 

§  47.     Custody  of  Children 73 

§  48.     Remedies  of  Spouses  against  each  other  for  Breach  of  Matri- 
monial Obligations 74 

§  49.     The  Spouse  as  a  Criminal;  Private  Wrongs  and  Public  Wrongs 

compared 75 

§  .50.     Presumption  of  Wife's  Coercion,  how  far  carried 75 

§  51.     Offences  against  the  Property  of  One  Another 77 

§  52.     Mutual  Disability  to  Contract,  Sue,  &c 77 

§  53.     Mutual  Disqualification  as  Witnesses 78 


TABLE  OF   CONTENTS.  IX 

CHAPTER   III. 

KFFECT  OP  COVERTURE  UPON  THE  WIFE's  DEBTS  ANT)  CONTRACTS. 


§  54.     Genera]  Inequalities  of  Covertnve  at  Common  Law   ....     81 

§  55.     Exception  where  Wife  is  treated  as  Feme  Sole 83 

§§  5G,  57.     Husband's  Liability  for  Wife's  Antenuptial  Debts     .     83,  85 

§  58.     AVife's  General  Disability  to  Contract 86 

§  59.     Wife's  Disability  to  Contract  extending  beyond  Coverture  .     .     88 

§  60.     Wife  binds  Husband  as  Agent 89 

§  GL     Wife's  Necessaries;  Foundation  of  Husband's  Obligation  .     .     90 

§62.     Wife's  Necessaries;  Living  together  or  separate 93 

§§  63-65.     AVife's  Necessaries  where  Spouses  live  together  .     .  94,  97,  99 
§§  66,  67.     Wife's  Necessaries  where  Spouses  live  apart  .     .     .     100,  104 
§  68.     Wife's  Necessaries  where  Spouses  live  apart;  Mutual  Separa- 
tion     105 

§  69.     Wife's  Necessaries  where  Spouses  live  apart;  Presumptions; 

Good  Faith 106 

§70.     AVife's  Necessaries;  Summary  of  Doctrine 107 

§71.     Wife's  Necessaries;  Miscellaneous  Points 109 

§  72.     Wife's  General  Agency  for  her  Husband Ill 

§  73.     Effect  of  Marriage  of  Debtor  and  Creditor 113 


CHAPTER  IV. 

EFFECT   OF   COVERTURE   UPON   THE   WIFE's   INJURIES   AND    FRAUDS. 

§  74.     General  Principle  stated 114 

§  75.     Torts  by  the  Wife;  Husband  and  AYife  sued  together,  or  Hus- 
band alone;  Presumption  of  Coercion,  &c 114 

§76.     Torts  by  Wife  which  ar6  based  on  Contract 116 

§  77.     Torts  committed  upon  the  Wife 117 

§78.     Torts  upon  the  Wife ;  Instantaneous  Death;  Statutes    .     .     .  120 

§79.     Torts  upon  the  AVife ;  Miscellaneous  Points 121 


CHAPTER   V. 

EFFECT   OF   COVERTURE    UPON   THE   WIFE's    PERSONAL   PROPERTY. 

§  80.     Wife's  Personal  Property  in  General;  Marriage  a  Gift  to  the 

Husband 122 

§  81.     Earnings  of  AA'"ife  vest  in  Husband 123 

§  82.     AVife's  Personal  Property  in  Possession 124 

§  83.     Wife's  Personalty  in  Action 126 


X  TABLE  OF   CONTENTS. 

Page 
§84.     Wife's  Personalty  in  Action;  Reduction  into  Possession      .     .  128 
§  85.     Wife's  Personalty  in  Action ;  Wife's  Equity  to  a  Settlement  .  130 
§  86.     Personal  Property  held  by  Wife  as  Fiduciary;  Wife  as  Execu- 
trix, &c 13] 


CHAPTER   VI. 

EFFECT    OF    COVERTURE    UPON    THE   WIFE'S    CHATTELS     REAL   AND    REAL 

ESTATE. 

§§  87,  88.     Husband's    Interest   in    Wife's   Chattels   Real,    Leases, 

&c 132,  135 

§89.     Wife's  Real  Estate ;  Husband's  Interest 137 

§  90.     Wife's  Real  Estate;  Husband's  Right  to  Convey  or  Lease  .     .  141 
§91.     Wife's  Real  Estate;  Husband's  Mortgage;  Waste      .     .     .     .  144 
§  92.     Wife's  Real  Estate;  Husband's  Dissent  to  Purchase,  &c. ;  Con- 
version      144 

§93.     Wife's  Real  Estate ;  Husband's  Agreement  to  Convey   .     .     .  145 
§  94.     Wife's  Agreement  to  Convey;  Her  Conveyance,  Mortgage,  &c., 

under  Statutes 146 

§  95.     Covenants  in  Wife's  Statute  Conveyance  or  Mortgage,  &c.  .     .  149 

§96.     Conveyance,  &c.,  of  Infant  Wife's  Lands 151 

§  97.     Distinction  between  Wife's  General  and  Separate  Real  Estate  152 

§98.     Wife's  Life  Estate;  Joint  Tenancy,  &c 152 

§  99.      Husband's  Freehold  Interest  in  Wife's  Land  not  Devisable  by 

Wife 153 


CHAPTER   VII. 

COVERTURE   MODIFIED    BY    EQUITY   AND    RECENT    STATUTES. 

§  100.  Prevalent  Tendency  to  equalize  the  Sexes;  Marriage  Rela- 
tion affected 153 

§  101.     Modern  Changes  in  Married  Women's  Rights;   How  to  be 

Studied 155 

§  102.     Modern   Equity   and    Statute   Doctrine  ;    England   and   the 

United  States 155 

CHAPTER   VTII. 

THE   wife's   SEPARATE   PROPERTY  ;     ENGLISH    DOCTRINE. 

§  103.  Origin  and  Nature  of  Separate  Estate  in  Chancery  .  .  .  .156 
§  104.  Whether  Appointment  of  a  Trustee  is  Necessary  .  .  .  .158 
§  105.     Coverture    applies   Prima    Facie ;    How   Separate   Estate   is 

created 158 


TABLE   OF   CONTENTS.  Xl 

Page 

§  106.     Separate  Use  binds  Pioduce  of  Fund IGl 

§  107.     Separate  Use  exists  only  during  Marriage;  Exceptions;  Am- 
bulatory Operation 162 

§  108.     AVife's  Right  to  renounce  Separate  Use,  &c 163 

§  109.     Separate  Use  and  the  Marital  Obligations 164 

§  110.     Clause  of  Restraint  upon  Anticipation 165 

§  111.     Separate   Use    in   Common-Law   Courts;    English   Married 

Womens'  Act 166 


CHAPTER  IX. 

THE   wife's    separate    PROPERTY  ;     AMERICAN   DOCTRINE. 

§  112.     Early  American  Rule 167 

§113.     The  Late  Married  Women's  Acts;  Social  Revolution  .     .     .169 
§  114.     Scope  of  Married  Women's  Acts;  Constitutional  Points    .     .  173 
§  115.     Married  Women's  Acts  as  to  Antenuptial  Property  and  Ac- 
quisitions from  Third  Persons 170 

§116.     Change  of  Investment ;  Increase  and  Profits 177 

§  117.  IMethods  of  Transfer  from  Third  Parties  under  these  Acts  .  177 
§  118.  Acquisitions  from  Husband  not  so  much  Favored  ....  178 
§  119.     Husband's  Control;  Mixing  Wife's  Property  or  Keeping  it 

Distinct 180 

§  120.     Husband  as  Wife's  Trustee  in  this  Connection 182 

§  120  a.     Presumptions  as  to  Separate  Property  under  these  Acts       .  183 

§  121.     Schedule  or  Inventory  of  Wife's  Property 184 

§  122.     Statutory  and  Equitable  Separate  Property 184 

§123.     American  Equity  Doctrine;  Trustee  for  Separate  Property    .  185 

§  124.     Equity  Doctrine;  How  Separate  Use  created 185 

§  125.     Equity  Doctrine ;  Acquisition  by  Contract ;  Produce  and  In- 
come  187 

§126.     Equity  Doctrine;  Preserving  Identity  of  Fund 188 

§  127.     Equity  Doctrine;  Separate  Use  only  in  Married  State;  How 

Ambulatory 188 

§128.  Equity  Doctrine ;  Whether  Marital  Obligations  affected  .  .189 
§129.     Equity  Doctrine ;  Restraint  upon  Anticipation 189 

CHAPTER  X. 

THE   wife's    dominion   OVER   HER    EQUITABLE    SEPARATE    PROPERTY. 

§  130.     General  Principle  of  Wife's  Dominion 190 

§  131.     Wife,  unless  restrained,  has  Full  Power  to  dispose  ....  191 

§  132.     Same  Principle  applies  to  Income 191 

§  133.     Technical  Difficulties  as  to  disposing  of  Real  Estate     .     .     .  192 
§  134.     Liability  of  Separate  Estate  on  Wife's  Engagements;  Eng- 
lish Doctrine 192 


Xll  TABLE  OF   CONTENTS. 

Page 

§135.     The  Same  Subject;  Latest  English  Doctrine 196 

§  136.     Dominion  and  Liability  of  Wife's  Separate  Estate;  American 

Doctrine 197 

§  136  a.     Property  with  Power  of  Appointment     . 199 

§  137.     Wife's  Right  to  bestow  upon  Husband,  bind  for  his  Debts, 

&c 200 

§  138.  Concurrence  of  Wife's  Tnastee,  whether  Essential  ....  201 
§  139.  Whether  Wife  must  be  specially  restrained  under  the  Trust .  202 
§  140.     Wife's  Participation  in  Breach  of   Trust  with  Husband  or 

Trustee 203 

§141.     Income  to  Husband ;  One  Year's  Arrears 203 

CHAPTER   XI. 

THE   wife's   dominion   OVER    HER   STATUTORY   SEPARATE    PROPERTY. 

§  142.  Dominion  under  Married  AV omen's  Acts  in  General  .  .  .  204 
§  143.  New  York  Rule  as  to  Wife's  Charge  not  Beneficial ....  204 
§144.  Combined  Tests;  Benefit  and  Express  Intention  ....  207 
§  145.  Whether  Wife  may  bind  as  Surety  or  Guarantor  ....  208 
§  146.     Inquiry  into  Consideration  Pertinent;  Promissory  Note,  Bond, 

&c 209 

§  147.     Equity  charges  Engagement  on  General  as  well  as  Specific 

Property 210 

§148.  Married  Woman's  Executory  Promise;  Purchase  on  Credit  .  211 
§  149.     Married   Woman's    Ownership   of    Stock;    Employment  of 

Counsel 212 

§  150.  Joinder  of  Husband;  Wife's  Conveyances  and  Contracts  .  213 
§151.     Improvements,  Repairs,  &c.,  on  Wife's  Lands;    Mechanics' 

Liens 215 

§  152.     Mortgage  of  Wife's  Lauds 216 

§153.     Wife's  Separate  Property ;  Husband  as  Managing  Agent .     .  216 
§  154.     Husband  as  Managing  Agent;  Services,  &c. ;  Husband's  Cred- 
itors   217 

§  155.     Husband's  Dealings  with  Wife's  Property;  Gift,  Fraud,  Use 

of  Income,  &c 219 

§  156.     Married  Woman  as  Trustee 222 

§157.  Tendency  as  to  Wife's  Binding  Capacity;  her  Estoppel  .  .222 
§  158.  Proceedings  for  charging  Wife's  Separate  Estate  ....  223 
§  159.     English  Married  Women's  Act;  Wife's  Disposition      .     .     .  224 

CHAPTER  XII. 

THE   wife's    PIX-MONEY,    SEPARATE    EARNINGS,    AND    POWER    TO    TRADE. 

§  160.     The  Wife's  Pin-Money 225 

§  161.     Wife's  Housekeeping  Allowance 226 


TABLE   OF   CONTENTS.  XIU 

Pago 
§  162.     Wife's  Earnings  belong  to  the  Husband;  Legislative  Changes, 

&c 226 

§  163.     Wife's  Power  to  Trade;  Earlier  English  Rules 228 

§  164.     Wife's  Power  to  Trade;  American  Equity  Rule 230 

§  165.     Conclusion  from  English  and  American  Decisions    .     .     .     .231 
§  166.     Enlargement  of  Wife's  Power  to  Trade  under  Recent  Stat- 
utes     232 

§  167.     Wife's  Trading  Liabilities  under  American  Statutes     .     .     .  233 

§168.     Wife's  Trade;  Husband's  Participation 231 

§  169.     Wife  as  Copartner  with  Husband  or  Others 237 

§  170.     Civil-Law  Doctrine  of  Separate  Trade   . 239 

CHAPTER  XIII. 

ANTENUPTIAL    SETTLEMENTS. 

§  171.     Nature  of  Marriage  Settlements 240 

§  172.     Distinguished   from   Promises    to  Marry   under   Statute  of 

Frauds 240 

§  173.     Marriage   the    Consideration    which    supports    Antenuptial 

Settlements 241 

§  174.     How  far  this  Support  extends 242 

§  175.     Settlement  Good  in  Pursuance  of  Written  Agreement  .     .     .  244 

§  176.     Form  of  Antenuptial  Settlements 245 

§  177.     Marriage  Articles 245 

§  178.     Marriage  Settlements  by  Third  Persons 247 

§  179.     Effect  of  Statute  of  Frauds 247 

§  180.     General  Requirements,  Trustee,  &c 248 

§181.     Secret  Settlement  before  Marriage;  Fraud  of  a  Spouse      .     .  248 

§  182.     Reforming  Marriage  Settlements;  Portions,  &c 250 

§  183.     Equity  corrects  Mistakes,  or  sets  aside;  Fraud  and  Improvi- 
dence      251 


CHAPTER  XIV. 

POSTNUPTIAL   SETTLEMENTS  ;   GIFTS   AND   GENERAL    TRANSACTIONS 
BETWEEN   SPOUSES. 

§  184.     Postnuptial    Settlements    distinguished    from   Antenuptial; 

Gifts  between  Spouses 252 

§  185.     Postnuptial  Settlements  as  to  Creditors  and  Purchasers;  Stat- 
utes 13  Eliz.  and  27  Eliz 253 

§  186.     Same  Subject;  Statute  13  Eliz.;  Bankrupt  Acts 254 

§  187.     Same  Subject;  Stat.  27  Eliz 256 

§  188.     Same  Subject;  Settlement  upon  Valuable  Consideration   .     .  259 
§§  189,  190.     Postnuptial  Settlements  as  between  the  Spouses  .     261,  262 


XIV  TABLE  OF  CONTENTS. 

Page 

§  191.  General  Transactions  between  Husband  and  Wife  ....  264 

§  192.  Transfer  of  Note  from  one  Spouse  to  the  Other ;  Conveyance  265 

§193.  Conveyances  or  Transfers  to  Husband  and  Wife;  Effect    .     .  265 

§  194.  Questions  of  Resulting  Trust  between  Husband  and  Wife     .  266 

§  195.     Insurance  upon  Husband's  Life 267 


CHAPTER  XV. 

DEATH   OF   THE   WIFE;   RIGHTS    AND   LIABILITIES   OF   THE   SURVIVING 

HUSBAND. 

§  196.     Husband's  Right  to  Administer 267 

§197.     The  Same  Subject;  Assets  for  Wife's  Debts 268 

§  198.     Surviving  Husband's  Rights  in  Wife's  Personal  Property       .  269 

§  199.     Husband's  Obligation  to  bury  Wife;  Rights  corresponding   .  272 

§  200.     Death  of  Husband  pending  Settlement  of  Wife's  Estate    .     .  273 

§  201.     Rights  in  Wife's  Real  Estate;  Tenancy  by  the  Curtesy     .     .  274 

§  202.     Tenancy  by  the  Curtesy ;  Subject  continued 275 

§203.     Husband's   Claims  against   Wife's   Real  Estate;    Improve- 
ments, &c 276 

§  203,  note.     Wills  of  Married  Women 276 


CHAPTER   XVI. 

DEATH   OF  THE   HUSBAND;    RIGHTS    AND    LIABILITIES   OF   THE   SURVIV- 
ING WIFE. 

§  204.     Widow's  Right  to  Administer 277 

§  205.     Widow's  Distributive  Share  in  Personalty 277 

§  206.     Widow's  Waiver  of  Provision  of  Will 279 

§  207.     Widow's  Allowance 279 

§  208.     Widow's  Paraphernalia 279 

§  209.  Equity  of  Redemption  and  Exoneration  in  Mortgages  .     .     .  283 

§  210.  Controversies  between  Administrator  and  Widow    ....  283 

§  211.     Widow's  Obligation  to  bury  Husband 284 

§  212.  Effect  of  Husband's  Death  upon  Wife's  Contracts  ....  285 

§  213.     The  Widow's  Dower 286 

§214.     Homestead  Rights 287 


CHAPTER   XVn. 

SEPARATION   AND   DIVORCE. 

§  215.     Deed  of  Sepai-ation ;  General  Doctrine 288 

§216.     The  Same  Subject;  English  Rule 289 


TABLE   OF   CONTENTS.  XV 


§  217.     The  Same  Subject;  American  Rule 291 

§  218.     The  Same  Subject;  what  Covenants  are  upheld 293 

§219.     Abandonment;  Rights  of  Deserted  AVife 296 

§  220.     Divorce  Legislation  in  General 297 

§  221.  Effect  of  Absolute  Divorce  upon  Property  Rights     ....  298 

§  222.     Effect  of  Partial  Divorce  upon  Property  Rights 300 

§  222,  note.     Coniiict  of  Laws  Relating  to  Marriage,  Divorce,  &c.      .  301 


PART   III. 

PARENT    AND   CHILD. 
CHAPTER  L 

OF    LEGITIMATE    CHILDREN   IN   GENERAL. 

§223.     Parent  and  Child  in  General;  Children,  Legitimate  and  Ille- 
gitimate  303 

§  224.     Legitimate  Children  in  General 304 

§  225.     Presumption  of  Legitimacy 305 

§  226.     Legitimation  of  Illicit  Oifspring  by  Subsequent  Marriage      .  308 
§  227.     Legitimation  by  Subsequent  Marriage  ifot  favored  in  England  310 

§227a.     Legitimacy  of  OfEspring  born  after  Divorce 312 

§  228.     Legitimacy  in  Marriages  Null  but  Bona  Fide  contracted   .     .  312 

§  229.     Legitimation  by  the  State  or  Sovereign 312 

§  230.     Domicile  of  Children 313 

§  231.     Conflict  of  Laws  as  to  Domicile  and  Legitimacy 314 

§  232.     Parental  Relation  by  Adoption 316 

CHAPTER  IL 

THE   DUTIES    OF    PARENTS. 

§  233.     Leading  Duties  of  Parents  enumerated 317 

§234,  Duty  of  Protection;  Defence;  Personal  and  Legal   .     .     .■  .  317 

§  235.     Duty  of  Education 318 

§  236.     Duty  of  Maintenance  in  General 321 

§  237.  Maintenance  at  Common  Law;  Statute  Provisions  ....  322 
§  238.  Maintenance,  &c.,  in  Chancery;  Allowance  from  Child's  For- 
tune  325 

§  239.  Chancery  Maintenance  as  to  Mother;  Separated  Parents,  &c.  329 

§240.     Chancery  Maintenance ;  Income;  Fund 330 


XVI  TABLE   OF   CONTENTS. 

Page 
§241.     Whether  Child  may  bind  Parent  as  Agent;  Child's  Neces- 
saries      331 

§  242.     Duty  of  providing  a  Trade  or  Profession 335 

CHAPTER  III. 

THE   RIGHTS    OF   PARENTS. 

§  243.     Foundation  of  Parental  Rights 335 

§244.  Parental  Right;  Chastisement;  Indictment  for  Cruelty,  &c.   .  335 

§  245.  Parental  Custody ;  Common-law  Rule ;  English  Doctrine  .     .  337 

§  246.  Chancery  Jurisdiction  in  Custody ;  Common  Law  overruled  .  338 

§  247.     Custody;  English  Rule;  Statute 341 

§  248.     Parental  Custody;  American  Rule 341 

§  249.     Custody  under  Divorce  and  other  Statutes 343 

§250.     Custody  of  jSIinors;  Child's  own  Wishes 345 

§  251.     Contracts  transferring  Parental  Rights 345 

§§  252,  252  a.     Right  of  Parent  to  Child's  Labor  and  Services    .    347,  348 

§  253.  Clothing,  Money,  &c.,  given  to  the  Child;  Right  to  Insure     .  351 

§  254.  Mother's  Rights  to  Child's  Services  and  Earnings    ....  352 

§  255.  Parent  has  no  Right  to  Child's  General  Property     ....  352 

§  256.  Constitutional  Right  of  Legislature  to  interfere  with  Parent  .  353 


•CHAPTEPv   IV. 

THE   parent's   rights    AND   LIABILITIES   FOR    THE   CHILD'S   INJURIES 
AND   FRAUDS. 

§257.     Injuries,  &c.,  committed  upon  or  by  the  Child 353 

§§  258,  259.     Injuries  committed  upon  the  Child;  Parent's  Right  to 

sue  ... 354,  355 

§  260.     Suit  for   harboring  or  enticing  away  One's  Child;   Abduc- 
tion, &c 357 

§  261.     Suit  for  Seduction  of  a  Child 359 

§  262.     Damages  in  Parental  Suits  for  Injury  to  the  Child  ....  364 
§  263.     Parental  Liability  wliere  the  Child  is  the  Injuring  Party  .     .  365 


CHAPTER  V. 

DUTIES   AND   RIGHTS   OF   CHILDREN,  WITH   REFERENCE    TO   THEIR 
PARENTS. 

§  264.     General  Duties  of  Children  to  Parents 308 

§  265.     AVhether  Child  may  be   legally  bound  to   support  Parent; 

Statutes  369 


TABLE   OF   CONTENTS.  XVll 

Page 

§  266.     Rights  of  Children  in  General 370 

§  267.     The  Emancipation  of  a  Child 371 

§  267  a.     How  a  Minor  Child  is  emancipated;  Parental  Relinquish- 
ment of  Right  to  Earnings 372 

§  268.     Effect  of  Minor  Child's  emancipation  or  Relinquishment       .  375 

§  269.     Rights  of  Full-grown  Children 376 

§  270.     Gifts,  &c.,  and  Transactions  between  Parent  and  Child   .     .  378 

§271.     Same  Subject;  English  Cases 380 

§272.     Advancements    and   Distributive    Shares;    Expectancies   of 

Heirs 381 

§  273.     Stepchildren ;  Quasi  Parental  Relationship 38-5 

§  274.     Claims  against  the  Parental  Estate  for  Services  rendered  .     .  385 
§  275.     Suits  between  Child  and  Parent 386 


CHAPTER   VI. 

4 

ILLEGITIMATE    CHILDREN. 

§276.     Illegitimate  Children;  Their  Peculiar  Footing 388 

§277.     Disability  of  Inheritance 389 

§278.  Mother  preferred  to  the  Putative  Father;  Custody  .     .     .     .391 

§  279.     Maintenance  of  Illegitimate  Children 394 

§280.     Persons  in  Loco  Parentis ;  Distant  Relatives,  &c 396 

§  281.     Bequests  to  Illegitimate  Children 396 

§  282.     Guardianship  of  an  Illegitimate  Child 399 


PART   IV. 

GUARDIAN   AND   WARD. 
CHAPTER  I. 

OF   GUARDIANS   IN   GENERAL;    THE    SEVERAL   KINDS. 


§  283.  Guardianship  defined;  Applied  to  Person  and  Estate    . 

§  284.  Classification  of  Guardians  in  England ;  Obsolete  Species 

§  285.  English  Doctrine;  Guardianship  by  Nature  and  Nurture 

§286.  English  Doctrine;  Guardianship  in  Socage      .... 

§287.  English  Doctrine;  Testamentary  Guardianship   .     .     . 

§288.  English  Doctrine;  Chancery  Guardianship      .... 

§  289.  English  Doctrine;  Guardianship  by  Election  of  Infant 

§  290.  Classification  of  (xuardians  of  Minors  in  the  United  States; 

Nature  and  Nurture,  Socage,  and  Testamentary  ....  409 

§291.  American  Doctrine ;  Chancery  and  Probate  Guardianship     .  411 


400 
401 
402 
403 
404 
406 
408 


XVUl  TABLE   OF   CONTENTS. 

Page 

§  292.  Guardianship  by  the  Civil  Law 413 

§  293.  Guardians  of  Idiots,  Lunatics,  Spendthrifts,  &c 414 

§294.  Guardians  of  Married  Women 415 

§295.  Special  Guardians;  Miscellaneous  Trusts 416 

§  296.  Guardian  ad  Litem  and  Next  Friend 416 


CHAPTER  IL 

APPOINTMENT   OF   GUARDIANS. 

§  297.     Appointment  of  Guardians  over  Infants  in  General       .     .     .  417 

§  298.     Guardians  under  Authority  of  the  Law 417 

§§  299,  300.  Testamentary  Guardianship,  how  constituted  .  .  418,  419 
§301.  Guardianship  by  Appointment  of  Infant;  Right  to  nominate  421 
§  302.     Chancery  and  Probate  Guardians  are  judicially  appointed.     .  422 

§303.     The  Same  Subject;  Jurisdiction;  how  obtained 422 

§§  304,  305.     Selection  of  Chancery  or  Probate  Guardian     .     .     425,  427 
§  306.     Same  Subject ;    Appointment  of  Married  Women ;   of  Non- 
Resident,  &c 430 

§  307.     Method  of  appointing  Guardian ;  Procedure 431 

§  308.  Effect  of  Appointment;  Conclusiveness  of  Decree,  &c.  .  .  .  433 
§  309.     Civil-Law  Rule  of  appointing  Guardians 435 

CHAPTER  III. 

TERMINATION   OF    THE    GUARDIAN'S    AUTHORITY. 

§  310.     How  the  Guardian's  Authority  is  terminated 435 

§311.     Natural  Limitation;  Ward  of  Age,  &c 435 

§  312.     Death  of  the  Ward 437 

§  313.     Marriage  of  the  Ward 437 

§  314.     Death  of  the  Guardian 439 

§  315.     Resignation  of  the  Guardian 439 

§§  316,  317.     Removal  and  Supersedure  of  the  Guardian     .     .     442,  444 

§  318.     Marriage  of  Female  Guardian 446 

§  319.  Other  Cases  where  a  New  Guardian  is  appointed     ....  447 

CHAPTER  IV. 

NATURE   OF   THE   GUARDIAN'S   OFFICE. 

§  320.     Guardianship  relates  to  Person  and  Estate 448 

§  321.     Whether  a  Guardian  is  a  Trustee 450 

§  322.     Joint  Guardians 452 

§  323.     Judicial  Control  of  the  Ward's  Property 453 

§  324.     Guardianship  and  other  Trusts  blended 454 

§  325.     Administration  durante  Minore  JEtate 456 


TABLE   OP   CONTENTS.  XIX 

Page 
§  326.     Quasi  Guardianship  where  no  Regular  Appointment     .     .     .  456 

§  327.     Conflict  of  Laws  as  to  Guardianship 457 

§  328.     Conflict  as  to  Ward's  Person 457 

§  329.     Conflict  as  to  Ward's  Property 458 

§  330.     Constitutional  Questions  relating  to  Guardianship   ....  460 


CHAPTER   V. 

RIGHTS   AND   DUTIES   OF    GUARDIANS   CONCERNING    THE   WARD's 
PERSON. 

§  331.     Division  of  this  Chapter 460 

§§  332,  333.     Guardian's  Right  of  Custody 462,  464 

§  334.     Guardian's  Right  to  change  Ward's  Domicile  or  Residence    .  466 
§  335.     Right  to  Personal  Services  of   Ward;   to  recover  Damages; 

Other  Rights 468 

§  336.     Guardian's  Duties  as  to  Ward's  Person ;  in  General     .     .     .  469 

§  337.     Liability  for  Support  of  Ward 469 

§  338.     Same  Subject;  Using  Income  or  Capital,  &c 472 

§  339.     Allowance  to  Parent  for  Ward's  Support;  Chancery  Rules     .  474 

§  340.     Secular  and  Religious  Education  of  Ward  by  Guardian    .     .  476 


CHAPTER  VI. 

RIGHTS   AND   DUTIES   OF    THE   GUARDIAN    AS    TO   THE   WARD's   ESTATE. 

§  341.     Li  General;  Leading  Principles 477 

§  342.     Guardian's  General  Powers  and  Duties  as  to  Ward's  Estate  .  477 

§  343.     Right  to  sue  and  arbitrate  as  to  W^ard's  Estate 478 

§  344.  AVhether  Guardian  can  bind  Ward's  Estate  by  his  Contracts  481 
§  345.     Title  to  Promissory  Notes,  &c. ;  Promise  not  Collateral      .     .  482 

§  346.     Guardian's  Employment  of  Agents 482 

§  347.     Changes  in  Character  of  Ward's  Property;  Sales,  Exchanges, 

&c 483 

§§  348,  849.  Limit  of  Guardian's  Responsibility  in  Management  485,  487 
§§  350,  351.  Management  of  Ward's  Real  Estate  in  Detail.  .  488,  490 
§  352.     Management  of  the  Ward's  Personal  Property  in  Detail    .     .  492 

§  353.     Investment  of  Ward's  Funds 494 

§  354.     Same  Subject;  when  Chargeable  with  Interest 497 

CHAPTER  Vn. 

SALES   OF    THE   WARD's    REAL   ESTATE. 

§  355.     In  Sales   of  Ward's  Personal  Property  a   Liberal  Rule  ap- 
plies       ' 499 


XX  TABLE   OF   CONTENTS. 

Page 
§  356.     Otherwise  as  to  Real  Estate ;  Whether  Chancery  cau  sell  In- 
fant's Lands 500 

§357.     Same  Subject;  English  Chanceiy  Doctrine 501 

§  358.     Ci\al-Law  Rule  as  to  Sales  of  Ward's  Lands 502 

§  359.     Sale  of  Ward's  Lands  under  Legislative  Authority  common 

in  the  United  States     . 502 

§  360.     American  Statutes  on  this  Subject  considered 503 

§361.     Same  Subject;  Essentials  of  Purchaser's  Title 505 

§362.     American  Statutes;  Sales  in  Cases  of  Xon-Residents    .     .     .  509 
§  363.     American  Chancery  Rules  as  to  Sales  of  Infant's  Land     .     .  510 
§  361.     Guardian's  own  Sale  not  binding ;   Public  Sale  usually  re- 
quired    


511 


CHAPTER   VIIL 

THE    guardian's    BOND,    INVENTORY,    AND    ACCOUNTS. 

§365.     Guardian's  Recognizance;  Receiver,  &c.;  English  Chancery 

Rule 512 

§366.     American  Rule;  Bonds  of  Probate  and  other  Guardians    .     .  513 
§§  367,  368.     The  Same  Subject;   Liability  of  Guardian  and  Sure- 
ties       515,  518 

§  369.     The  Same  Subject;  Special  Bond  in  Sales  of  Real  Estate  .     .  519 

§  370.     The  Guardian's  Inventory 520 

§371.     The  Guardian's  Accounts;  English  Chancery  Pi-actice  .     .     .  521 
§§372,373.     Guardian's    Accounts;    American  Practice;    Periodical 

and  Final  Accounts,  &c 521,  525 

§  374.     The  Same  Subject;  Items  allowed  the  Guardian  on  Account  526 

§  375.     Compensation  of  Guardians 529 

§  376.     Suit  on  the  Guardian's  Bond  for  Default  and  Misconduct      .  530 
§  377.     The  Same  Subject;  Remedies  against  and  on  behalf  of  Sure- 
ties   532 

CHAPTER   IX. 

RIGHTS    AND    LIABILITIES    OF    THE    WARD. 

§  378.  General  Rights  of  the  ^Yard 534 

§  379.  Doctrine  of  Election  as  to  Wards,  Insane  or  Infant  ....  534 

§  380.  Same  Subject;  Insane  Persons  and  Infants  Contrasted      .     .  535 

§  381.  Responsibility  of  Guardian  to  Ward  as  Wrong-doer,  &c.  .     .  535 

§382.  Wai'd's  Action  or  Bill  for  Account;  Limitations,  &c.     .     .     .  536 

§  383.  Ward's  Right  to  recover  Embezzled  Property,  &c 538 

§  384.  Fraudulent  Transactions  set  aside  on  W'ard's  Behalf     .     .     .  538 

§  385.  Ward's  General  Right  to  repudiate  Guardian's  Transactions; 

His  Right  of  Election 540 


TABLE   OF   CONTENTS.  XXI 

Page 
§  386.     Same  Subject;  Resulting  Trusts;  Guardian's  Misuse  of  Funds; 

Purchase  of  AVard's  Propertj',  &c 542 

§387.  Transactions  between  Guardian  and  Ward;  Undue  Influence  544 
§  388.     Same  Subject;    Situation  of  Parties  at  Final  Settlement  of 

Accounts     .     .         545 

§  389.     Transactions  after  Guardianship  is  ended 549 

§  390.     Marriage  of  AVard  against  Consent  of  Chancery  or  Guardian  551 


PART   V. 

INFANCY. 


CHAPTER   I. 

THE   GENERAL   DISABILITIES   OF    INFANTS. 

§  391.     Age  of  Majority 553 

§  392.     Growing  Capacity  during  Non-age ;  Legislative  Relief  from 

Non-age 554 

§  393.     Conflict  of  Laws  as  to  True  Date  of  J\Iajority 555 

§  394.     Infant's  Right  of  holding  Oflice  and  performing  Official  Func- 
tions    .  556 

§  395.     Infant's  Responsibility  for  Crime 558 

§  396.     Infant's  Criminal  Complaint;  Infant  as  Prosecutor  ....  560 

§  397.     AVhether  Infant  may  make  a  AVill 560 

§  398.     Testimony  of  Infants 562 

§  399.     Marriage  Settlements  of  Infants 564 


CHAPTER  IL 

ACTS    VOID     AND   VOIDABLE. 

§  400.     General  Principle  of  Binding  Acts  and  Contracts,  as  to  In- 
fants  566 

§401.  The  Test  as  to  A'^oid  and  Voidable ;  Infant's  Transactions  .  567 
§  402.     Privilege  of  avoiding  is  Personal  to  Infant;  Rule  as  to  Third 

Persons,  &c 569 

§  403.     Modern  Tendency  regards   Infant's  Acts   and  Contracts  as 

Voidable  rather  than  Void ;  Instances  discussed    ....  571 

§404.     Same  Subject;  Bonds,  Notes,  &c 572 

§405.  Same  Subject;  Deeds,  &c.  Rule  of  Zouch  v.  Parsons  .  .  .  573 
§  406.  Same  Subject;  Letters  of  Attorney;  Cognovits,  &c.  .  .  .  575 
§  407.     Same  Subject;   Miscellaneous  Acts  and  Contracts  Voidable 

and  not  Void 577 


XXH  TABLE   OF   CONTENTS. 


§  408.     Infant's  Trading  and  Partnership  Contracts 579 

§  409.     Void  and  Voidable  Acts  contrasted;  When  may  Voidable 

Acts  be  affirmed  or  disaffirmed 581 


CHAPTER  III. 

ACTS   BINDING   UPON   THE   INFANT. 

§  410.  General  Principle  of  Binding  Acts  and  Contracts  ....  583 
§411.  Contracts  for  Necessaries ;  What  are  such  for  Infants  .  .  .  583 
§§  412,  413.  Contracts  for  Necessaries;  Subject  continued  .  .  586,  589 
§414.     Contracts  for  Necessaries;  Money  advanced;  Infant's  Deed, 

Note,  &c. ;  Equity  Ptules 502 

§  415.     Binding  Contract  as  to  Marriage  Relation;  Promise  to  marry 

not  binding 595 

§  416.    Acts  which  do  not  touch  Infant's  Interest ;  Where  Trustee, 

Officer,  &c 596 

§  417.     Infant  Members  of  Corporations 596 

§  418.     Acts  which  the  Law  would  have  compelled 596 

§  419.  Contracts  binding  because  of  Statute;  Enlistment;  Indenture  597 
§  420.  Infant's  Recognizance  for  Appearance  on  Criminal  Charge  .  598 
§  421.     Whether  Infant's  Contract  for  Service  binds  him     ....  598 

CHAPTER  IV. 

THE   INJURIES   AND    FRAUDS   OF   INFANTS. 

§  422.     Division  of  this  Chapter 599 

§  423.     Injuries  committed  by  Infant;  Infant  civilly  Responsible  .     .  599 

§  424.  Immunity  for  Violation  of  Contract  distinguished  ....  601 
§§425,426.     Same  Subject;  Infant's  Fraudulent  Representations  as 

to  Age,  &c 604,  606 

§427.     Injuries,  &c.,  suffered  by  Infants 607 

§428.     Same  Subject;  Child's  Contributory  Negligence 607 

§  429.     Same  Subject;  Contributory  Negligence  of  Parent,  Protector, 

&c 608 

§  430.     Suits  of  Parent  and  Child  for  Injmy;  Loss  of  Services  reck- 
oned        611 

§  431.     Arbitration,  Compromise,  and  Settlement  of   Injuries  com- 
mitted or  suffered  by  Infants 611 

CHAPTER  V. 

RATIFICATION   AND   AVOIDANCE   OF   INFANT'S   ACTS   AND    CONTRACTS. 

§  432.  Infants  may  ratify  or  disaffirm  Voidable  Acts  and  Contracts  612 
§  433.     Rule  affected  by  Statute ;  Lord  Tenterden's  Act;  Other  Statutes  612 


TABLE   OF   CONTENTS.  XXIU 

Page 
§434.     Rule  Independent  of  Statute;  American  Doctrine    ....  (514 

§  435.     The  Same  Subject;  Instances 016 

§  436.     The  Same  Subject;  Conflicting  Dicta 619 

§  437.     The  Same  Subject ;  Summary  of  Doctrine 620 

§  438.     Rule  as  to  Conveyance  of  Infant's  Lands,  Lease,  Mortgage,  &c.  622 
§  439.     Same  Subject;  Infant's  Conveyance,  Lapse  of  Time,  &c.  .     .  623 

§440.     The  Same  Subject;  Entry,  &c 625 

§  441.     Ratification,  &c.,  as  to  an  Infant's  Purchase 627 

§  442.     Executory  Contracts,  &c.,  Voidable  during  Infancy;  how  af- 
firmed or  disaffirmed      .         628 

§  443.     Rule  applied  to  Infant's  Contract  of  Service 629 

§444.     Parents,  Guardians,  &c.,  cannot  render  Contract  Obligatory 

upon  the  Infant,  &c 631 

§445.     Miscellaneous  Points;  As  to  New  Promise ;  Whether  Infant 

affirming  must  know  his  Legal  Rights 632 

§  446.     Whether  Infant  who  disaffirms  must  restore  Consideration     .  632 

§  447.     Ratification,  &c.,  as  to  Infant  Married  Woman 634 

§  448.     Rules  ;  How  far  Chancery  may  elect  for  the  Infant  ....  635 


CHAPTER   VI. 

ACTIONS   BY   AND   AGAINST   INFANTS. 

§  449.     Actions  at  Law  by  Infants:  Suit  or  Defence  by  Next  Friend 

or  Guardian • 636 

§  450.     Action  at  Law  by  Infants ;  The  Next  Friend 638 

§  451.     Action  at  Law  against  Infant;  the  Guardian  ad  Litem      .     .  640 
§452.     Chancery  Proceedings  by  or  against  Infants;  Corresponding 

Rule 643 

§  453.     Binding  Effect  of  Decree  or  Judgment  upon  the  Infant     .     .  644 


PART  yi. 

MASTER  AND   SERVANT. 
CHAPTER  I. 

NATURE  OF  THE  RELATION;  HOW  CREATED  AND  HOW  TERMINATED. 

§  454.     Definition ;  this  not  strictly  a  Domestic  Relation       ....  646 

§  455.     Rule  of  Classification  as  to  Master  and  Servant 648 

§456.     Relation  of  Master  and  Workman;  Courts  of  Conciliation; 

Trade  Unions,  &c 649 

§  457.     Relation  of  Master  and  Apprentice 651 


XXIV  TABLE   OF   CONTENTS. 

Page 
§  458.  Strict  Relation  of  Master  and  Servant ;  Contract  of  Hiring  .  654 
§  459.  Contract  of  Hiring  affected  by  Statute  of  Frauds  ....  657 
§  460.     Contract  of  Hiring;  wlieu  in  Restraint  of  Trade  or  Oppressive 

as  to  Length  of  Term 657 

§461.     Creating  the  Relation  of  Service;  Quasi  Servants    .     .     .     .  659 
§§  462,  463.     How  Contract  for  Service  is  terminated;  Causes  of  Dis- 
charge, &c 660,  663 

§  464.     Termination  of    Service   by   Mutual   Consent,  &c  ;   Special 

Terms 663 

§  465.  Servant's  Occupation  of  Master's  Premises;  No  Tenancy  Pre- 
sumed   664 

CHAPTER  11. 

MUTUAL   OBLIGATIONS    OF   MASTER   AND    SERVANT. 

§466.  Obligations  to  be  considered;  as  to  Master;  as  to  Servant  .  664 
§  467^     JMaster's  Obligation  as  to  Education,  Discipline,  &c.     .     .     .  664 

§  468.     INIaster's  Obligation  as  to  furnishing  Necessaries 665 

§  469.     Master's  Obligation  as  to  finding  Work 666 

§  470.     Master's  Obligation  to  indemnify  Servant 666 

§  471.  Master's  Obligp.tion  to  receive  into  Service  the  Person  en- 
gaged; Remedies  for  Breach 667 

§472.  Obligation  to  pay  Wages ;  Servant's  Right  to  recover  .  .  .  667 
§473.     The  Same  Subject;  Rules  for  Payment  of  Wages;  Offsets; 

Preference;  Apportionment,  &c 669 

§  474.     The  Same  Subject;  Change  of  Contract;  Excuse  by  Act  of 

God;  Justifiable  Termination,  &c 672 

§  475.     The  Same  Subject;  Termination  by  Mutual  Consent;  Special 

Conditions,  &c 674 

§  476.     Master's  Representations  as  to  Servant's  Character;  Guaranty 

as  to  Character,  &c 675 

§477.     Obligations  resting  specially  upon  the  Servant;  Performance 

of  his  Engagement 676 

§  478.     Servant's  Accountability  to  his  Master;  Negligence,  Unskil- 

fulness,  &c 677 

§  479.     ^Master  and  Servant  may  defend  one  another 677 

§  480.     Servant  a  Competent  Witness  for  his  Master 677 

CHAPTER   III. 

RIGHTS   AND   LIABILITIES   OF    THE    SERVANT    AS    TO    THIRD    PERSONS. 

§481.  Servant  not  personally  liable  on  Contracts ;  Exceptions     .     .  678 

§  482.  Rule  of  Servant's  Liability  for  his  Torts  and  Frauds     .     .     .  679 

§4S^,.  Torts  and  Frauds  of  Public  Officers 680 

§  484.  Criminal  Accountability  of  Servant 681 


TABLE   OF   CONTENTS.  XXV 

CHAPTER  IV. 

GENERAL    RIGHTS    AND    LIABILITIKS    OE    THE    MASTER. 

Pago 

§  485.     Leading  Division  of  this  Chapter 681 

§  486.     Master's  Right  of  Action  for  Injuries  to  Servant       ....  681 

§  487.     Right  of  Action  for  Seduction,  Enticement,  &c.,  of  Servant  .  682 

§  488.     Wlaether  Servant's  Outside  Acquisitions  belong  to  Master,  &c.  684 
§489.     Liability   of    Master   upon    Servant's    Contracts;    Servant's 

Agency 684 

§  490.     Master's  Civil  Liability  to  Others  for  Servant's  Torts  .     .     .  687 

§  491.     The  Same  Subject;  Limitations  of  Rule 690 

§  492.     Master's  Responsibility  for  Tort  to  his  own  Servants;  Excep- 
tion as  to  Fellow-Servants,  &c 691 

§  493.     Master  not  Criminally  Responsible  for  Servant,  but  only  for 

himself 694 

§  494.     Final  Observations  on  Law  of  Domestic  Servants     ....  695 


Preface  to  the  Third  Edition iii 

Preface  to  First  Edition v 

Table  of  Contents vii 

Table  of  Cases xxvii 

Index 697 


TABLE  OF  CASES. 


A. 


Section 


V.  Lyne 

305 

Aaron  v.  Harley 

411 

Abbey  v.  Deyo 

168 

Abbott  V.  Abbott 

52 

221 

275 

V.  Bayley 

219 

V.  Converse 

267,  267  a 

Abdil  V.  Abdil 

451 

Abington  v.  North  Bridgewater 

2.30 

Abraham  v.  Reynolds 

492 

Abrahams  v.  Kidney 

261 

Abshire  v.  State 

193 

Ackerman  v.  Bunyon 

437 

Ackert  v.  Pults 

94 

Ackley  v.  Dygert 

361 

Acosta  V.  Kobin 

278 

Acton  V.  Pierce 

176 

Adams  v.  Adams    44, 

48,  226,  269 

278 

V.  Cutright 

30 

V.  Palmer 

13 

V.  Riviere 

382 

V.  Ross 

404 

Adams's  Appeal 

301 

.307 

Adams  Express  Co.  v. 

Trego 

462 

477 

Adamson  v.  Armitage 

105 

106 

Addison  v.  Bowie 

238 

Adlard  v  Adlard 

190 

Agar-Ellis,  In  re 

840 

V.  Lascelles 

235 

Ahern  v.  Easterby 

67 

Ahrenfeldt  v.  Ahrenfeldt 

249 

Airhart  v.  Murphy 

86 

Alabama,  &c.  Ins.  Co. 

V.  Boykin 

94 

Albany  Fire  Ins.  Co.  v 

•  Bay 

94 

1.33 

Albert  v.  Perry 

305 

I'.  Winn 

173 

Albin  V.  Lord 

150 

155 

Albro  V.  Jaquith 

482 

Alcock  V.  Alcock 

53 

Alderman  v.  Tirrell 

451 

Aldrich  v.  Grimes 

S« 

ction 
437 

Aldridge  v.  Muirhead 

153 

,155 

Alexander,  Re 

186 

V.  Alexander 

821 

,374 

V.  Americus 

475 

V.  Frary 

451 

V.  Gibson 

489 

V.  Hard 

89 

V.  Heriot 

435 

Alfred  v.  McKay 

278 

Allen  V.  Allen 

225 

405 

V.  Coster 

238 

239 

V.  Crosland 

367 

V.  Fuller 

148 

V.  Gaillard 

353 

V.  Higlitower 

154 

V.  Hoppin 

343 

V.  Jackson 

32 

V.  London,  &c.  R.  R.  Co. 

490 

V.  McCuUough 

86 

V.  Minor 

404 

V.  Peete 

305 

V.  Poole                405,  435, 

438, 

439 

V.  Scurry 

89 

V.  State 

367 

V.  Tiffany 

376 

V.  Walt 

188 

Allorton  Packing  Co.  v.  Egan 

492 

AUfrey  v.  AUfrey 

389 

Allison  V.  Norwood 

457 

AUman  v.  Owen 

372 

Allsop  V.  Allsop 

77 

Almond  v.  Bonnell 

114 

Almy  V.  Wilcox 

66 

Alna  V.  Plummer 

67 

Alston  V.  Alston 

326 

366 

V.  Munford 

3-22' 

323 

Alsworth  V.  Cordtz 

402, 

439 

Altemus's  Case 

221 

Althorf  V.  Wolfe 

492 

XXVlll 


TABLE   OF   CASES. 


Section 

Alton  V.  Mullcdy  4(J1 

Alverson  v.  Jones  ll!0 

Ambrose  v.  Kenison  199 

American,  &c.  Ins.  Co.  v,  Owen  \)i 

Ames  V.  Chew  222 

V.  Foster  148,  170 

V.  Union  R.  457,  486 

Ammons  v.  People  307,  37G 

Amor  V.  Fearon  4(J2 

Anderson  v.  Anderson  77,  83,  107 

V.  Armstead  151 

V.  Brooks  121 

V.  Darby  350 

V.  Layton  361,  385 

V.  Mather  363,  447 

V.  Roberts  187 

V.  Smith  50 

V.  Warde  451 

V.  Watson  343 

Anderton  v.  Yates  333 

Andover  v.  Merrimack  County         269 

Andrews,  /?)  re  299,  333 

V.  Andrews  188,  390 

V.  Askey  262 

V.  Garrett  241 

17.  Monilaws  158 

V.  Salt  340 

Andrews's  Heirs,  Case  of  329,  369 

Angel  V.  Felton  56,  57,  75 

V.  McLellan  241,  413 

Angell  V.  Probate  Court  293,  307 

Angle  w.  Ilanna  477 

Ankeny  v.  Blackiston  343 

Annin  v.  Annin  187,  188 

Anonymous  18,  232,  238,  240,  250,  306, 

313,  320,  340 

Ansley  y.  Jordan 

Appleton  V.  Rowley 

Apthorp  V.  Backus 

Archer  i\  Frowde 

V.  Hudson 

V.  Rorke 

Archley  v.  Sprigg 

Ardis  !•.  Printup 

Armfield  v.  Armfield 

V.  Tate 
Armitage  v.  Snowden 

r.  Widoe 
Armstrong  v.  Armstrong 


472,  473 

107 

449 

450 

271 

lOlS 

225 

174 

173,  174 

441 

386 

406,  407,  444 

80 

McDonald  252  a 

V.  Ross  133,  1.34,  136,  143,  147,  158 

V.  Stone  248 

V.  Walkup     313,  326,  372,  374,  375 

Arnold  v.  Bidwood  87 

V.  Earle  397 

V.  Norton  259,  267  a 

Arrington  v.  Dortch  206 

Artlmr  v.  Arthur  105,  141 

Arthur's  Appeal  291,  301 

Arundell  v.  Piiipps  188 

Ashby  V.  Johnston  307 


Section 

Ashcraft  v.  Little  124 

Aslifiold  r.  Ashfield  438 

Ashley  v.  Harrison  487 

V.  Martin  354,  372 

Ashlin  V.  Langton  406 

Ashtou  V.  Ashton  453 

V.  Aylett  134 

Ashworth  v.  Outram  163,  166 

V.  Stanwix  492 

Askew  V.  Dupree  26,  29,  30 

Aspdin  V.  Austin  469 

Atcherley  v.  Vernon  105 

Atcheson  v.  Everitt  493 

Atchison  v.  Bruff  413 

Atkin  V.  Acton  462 

Atkins  V.  Curwood  64 

Atkinson,  Ex  par-te  330 

V.  Atkinson  854 

V.  Medford  18 

V.  Phillips  187 

V.  Whitehead  348,  352 

Atkyns  v.  Pearce  66 

Attebury  v.  Attebury  162 

Attorney-General  v.  Siddon  493 

Attridge  v.  Billings  61 

Atwood  V.  Holcomb  252  a,  267  a 

V.  Meredith  169 

Aucker  v.  Levy  176 

Auster  v.  Powell  272 

Austin  V.  Wilson  75 

Averson  v.  Lord  Kinnaird  53 

Avery  v.  Grifliins  58 

V.  Vansickle  143 

Ayer  v.  Warren  58,  219 

Ayers  v.  Jenkins  174 

Ayliff  y.  Archdale  414 

Ayliffe  v.  Tracy  178 

Ayling  ?'.  Whicher  77 

Aylward  v.  Kearney  388 

Aymar  v.  Roff  20 


B. 


B.  V.  B.  19 

Baason  i\  Baehr  475 

Babb  V.  Perley  89 

Babbitt  v.  Babbitt  38 

Babcock  i'.  Doe  403 

V.  Smith  175 
Bacon  v.  Taylor                          343,  350 

Baddeley  v.  Baddcley  190 

Badenhoof  v.  Johnson  305 
Badger  v.  Phinney                      424,  446 

Badgley  v.  Decker  261 

Baggett  V.  Meux  110 

Bagley  v.  Mollard  281 

Bailey,  Ex  parte  245 

V.  Bailey  45 

V.  Bamberger  446 


TABLE   OP   CASES. 


XXIX 


Section 

Bailey  ?'.  Calcott  66 

V.  Duncan  89 

V.  riske  17 

V.  King  241 

V.  Pearson  145 

V.  Ilosers  376 

Baillie  o.  Kell  463 

Bain  v.  Doran  197 

V.  Lescher  105 

Bainbridge  v.  Brown  271 

V.  Pickering  4lo 

Baines  v.  Barnes  238 

Baker  r.  Baker  23,  252  a 

V.  Barney  68 

V.  Bolton  78 

V.  Bradley  271 

V.  riournoy  89 

V.  Gregory  155 

V.  llaldeman  203 

V.  Hall  84 

V.  Hathaway  150 

V.  Jordan  181 

V.  Kennett  437 

V.  Lovett  407,  431 

V.  Ormsby  348 

V.  Richards  353 

V.  Wood  367 

V.  Young  75 

Baker's  Trusts,  Fn  re  109 

Bakers  v.  Winfrey  457 

Balch  V.  Smith  299 

Baldwin  v.  Carter  176,  198 

V.  Casella  490 

Ball  V.  Ball  246,  304 

V.  Bennett  75 

V.  Bruce  261 

Ballantine  v.  White  53 

Ballard  v.  Bruramitt  367 

V.  Russell  77 

V.  Ward  232 

Ballenger  v.  McLain  457 

Ballin  v.  Dillaye  136 

Ballou  I'.  Farnum  461 

Baltimore,  &c.  11.  R.  Co.  v.  State      429 

Bamford  v.  Shuttlewortli  481 

Banbury  Peerage  Case  225 

Bangor  v.  Readfield  267  a 

Bank  of  Virginia  v.  Craig  381 

Banker  v.  Banker  18 

Banks  i'.  Conant  252  a 

Bannister  v.  Bannister  335 

Banton  v.  Campbell  193 

Barbat  v.  Allen  53 

Barbee  v.  Armstead  41 

Barber  v.  Harris  91 

V.  State  279 

Barclay  v.  Waring  180,  221 

Bard  r.  Wood  372 

Bardwell  v.  Purrington  457 

Barela  v.  Roberts  278 

Barham  v.  Earl  of  Clarendon  174 


Section 

Barker  v.  Circle  150 

c.  Dayton  06 

V.  Dixie  53 

V.  Hibbard  412 

V.  Morrill  IBS 

V.  Wilson  405 

Barksliire  v.  State  17 

Barlow  v.  Bishop  163 

V.  Grant  240 

Barnaby  v.  Barnaby  385,  407,  435 

Barnard  v.  Ford  85 

V.  Heydrick  451 

Barnes  v.  Allen  41 

V.  Barnes  249 

V.  Camack  53 

V.  Couipton  388 

V.  Ehrman  94 

V.  Harris  75 

V.  Hazleton  272 

V.  Powers  816 

V.  Wyethe  24 

Barnet ;;.  Commonwealth  313 

Barnhizel  i\  Ferrell  232 

Barney  ?'.  Saunders  354 

V.  Seeley  351 

Barns  v.  Branch  319 

Barnum  v.  Barnum  26,  225 

V.  Frost  337 

Barr  v.  Armstrong  63 

V.  Van  Duyn  472 

Barrack  i-.  M'Culloch  106,  198 

Barrere  v.  Barrere  248 

Barrett  v.  Churchill  361 

V.  Cocke  351 

V.  Seward  394 

Barron  v.  Barron  162,  191 

Barrow  v.  Barrow  174 

Barry  v.  Barry  304 

Bartholemew  r.  Finnemore  446 

Bartlett,  Ex  parte  334 

V.  Bartlelt  137 

V.  Cowles  313 

Bartley  v.  Richtmeyer  261 

Barton  v.  Beer  168 

V.  Morris  23 

Bartonshill  Coal  Co.  v.  Reid  492 

Barwick  v.  Rackley  449,  450 

Basford  v.  Peirson  150 

Bass  V.  Cook  335 

Basse  v.  Allen  464 

Bassett  r.  Bassett  23,  24,  191 

Bast  V.  Byrne  463,  464,  472 

Batchelder  r.  Sargent  148 

Bates  V.  Dandy  88 

r.  Enright  67 

Battell  V.  Torrey  361 

Battle  r.  Vick  304 

Bauer  v.  Bauer  145 

Baugh  r.  Boles  377 

Bavington  v.  Clarke  418 

Baxter  v.  Bush  424,  441 


XXX 


TABLE   OF   CASES. 


Section 

Section 

Baxter  v.  Nurse 

458 

Bellinger  v.  Shafer 

351 

V.  Prickett 

162 

Bellows  V.  Rosenthal 

165 

Bay  V.  Gunn 

435 

Bellune  v.  Wallace 

367 

Bayard  r.  Hoffman 

186 

Belton  V.  Briggs 

435,  439 

Bayler  v.  Commonwealth 

95 

V.  Hodges 

408 

Baylis  v.  Dineley 

404 

Benadum  v.  Pratt 

219 

Bayspoole  v.  Collins 

188 

Benham  ;;.  Bishop 

435 

Bazeley  v.  Forder 

66, 

237 

Benison  v.  Worsley 

307 

Beach  v.  Mullin                   458, 

462, 

473 

Benjamin  v.  Bartlett 

75 

V.  Ranney 

77 

V.  Benjamin 

58 

V.  White 

187 

Bennet  v.  Bennet        248,  249,  256,  272 

Beachcroft  v.  Beachcroft 

281 

Bennett  v.  Allcott 

261 

Beal  V.  liarnion 

348 

V.  Byrne 

305,  366 

I'.  Warren 

150 

187 

V.  Davis 

104,  406 

Beall  V.  Beall 

229 

V.  Gillett 

260 

V.  Smith 

453 

V.  Hanifin 

372 

Beam  v.  Froneberger 

385 

V.  Ives 

482 

Beamisli  i'.  Beamish 

29 

V.  Smith 

20,41 

Bean  v.  Smith 

187 

V.  Stacy 

473 

Bear  ).'.  Hays 

162 

V.  Welder 

398 

Bear's  Administrator  v.  Bear 

120 

Benson  v.  Benson 

107,  108 

Beard  v.  Dean 

301 

306 

V.  Remington 

252 

•   V.  Webb 

103 

Bent  V.  Manning 

411,  413 

Beasley  v.  Magrath 

239 

Bcntley  v.  Shreve 

354 

V.  Watson 

339 

352 

V.  Simmons 

120 

Beattie  r.  Jolmston 

329 

Bently  v.  Terry 

251 

Beau  V.  Kiah 

162 

Benton  v.  Benton 

23 

Beaudry  v.  Felch 

155 

Benwell  v.  Inns 

460 

Beaufort  v.  Collier 

124 

Benziger  v.  Miller 

2-52  a,  268 

Beaver  v.  Lane 

89 

Bercy  v.  Lavretta 

127 

Beavers  v.  Brewster 

312 

343 

Berea  Stone  Co.  v.  Kraft 

492 

Beazley  v.  Harris 

313 

384 

Bergen  v.  Udall 

271 

Beclier,  Ex  parte 

320 

Berkmeyer  r.  Kellerman 

389 

Becker  v.  Gibson 

265 

Berry  v.  Jolmson 

306 

Beckham  v.  Drake 

472 

V.  Owens 

277 

Bedell  v.  Bedell 

248 

249 

I'.  Teel 

162 

V.  Constable                 286 

299 

320 

Bertrand  v.  Elder 

188 

V.  Lewis 

451 

Besant,  Re 

218,  235 

Bedell's  Appeal 

188 

V.  Wood 

218 

Bedford  v.  M'Kowl 

262 

Besse  v.  Pellochoux 

222 

Bedinger  v.  Wharton 

446 

Besson  r.  Eveland 

155 

Beebe  v.  Estabrook 

272 

Best  V.  Best 

23 

Beech  v.  Keep 

189 

V.  Givens 

435 

Beecher  v.  Crouse 

343 

Bethlem  v.  Roxbury 

278 

Beedle  v.  State 

388 

Bethune  v.  Green 

349 

Beeler  v.  Bullett 

402 

Betton's  Trust  Estates,  In 

re              88 

V.  Dunn 

338 

Betts  V.  Betts 

154 

V.  Young                        404 

411 

413 

V.  Carroll 

446 

Beeston  v.  Collyer 

462 

V.  De  Vitre 

490 

Belford  v.  Crane 

187 

Beverson's  Estate 

26,  27 

Bell,  Ex  parte 

290 

Bevier  v.  Galloway 

66 

V.  Drummond 

473 

Bevis  V.  Hefiin 

349,  385,  386 

V.  Hallenback 

270 

Bibb  V.  McKinley 

326 

V.  Herrington 

457 

Bickel  V.  Erskine 

407,  453 

V.  Jasper 

367 

Bicknell  v.  Bicknell 

444,  451 

V.  Morrison 

436 

Bigelow  V.  Grannis 

445 

Bellairs  v.  Bellairs 

32 

V.  Kinney 

438 

Bellefontaine,  &c.  R.  R.  Co.  v 

Snj 

'. 

Bill  V.  Curoton 

187,  189 

der 

429 

Binion  r.  Miller 

389 

Beller  ?•.  Jones 

251 

Binnin<iton  v.  Wallis 

279 

V.  Marcliant 

408 

Birchall,  In  re 

448 

TABLE   OF   CASES. 


XXXI 


Bird  V.  Brown 

V.  Yegg 

V.  Pegrum 

V.  Randall 
Birtwhlstlo  v.  Vanlill 
Biscoe  V.  Kennedy 
Bishop,  /n  re 

V.  Bisliop 

V.  Blair 

V.  Sheperd 

V.  Wall 
Bissell  V.  Bissell 
Bitter  v.  IJathman 
Bixby  V.  Dunlap 
Black  V.  Bryan 

V.  Galway 

V.  Hills 

V.  Walton 

V.  Whitall 
Blackborne  v.  Haigh 
Blackburn  v.  Crawfords 

V.  Mackey 
Blacklow  r.  Laws 
Blackman  i\  Baumann 

V.  Davis 
Blackmore  v.  Brider 

V.  Shelby 
Blackwell  v.  State 
Blades  v.  Free 
Blagge  ('.  Ilsley 
Blake  v.  Blake 

V.  Douglass 

V.  Hall 

V.  Lanyon 

V.  Leigh 

V.  Pegram     322,  343,  372, 
Blanchard  v.  Ilsley 
Blandford  v.  Marlborough 
Blaiikenship  v.  Stout 
Blauser  17.  Dield 
Blaymire  v.  Haley 
Bledsoe  v.  Britt 
Blevins  v.  Buck 
Blodget  r.  Brinsmaid 
Blodgett  V.  Berlin  Mills 
Blodwell  V.  Edwards 
Blogg  V.  Kent 
Blonifield  r.  Eyre 
Blood  V.  Harrington 
Blount  I'.  Bestland 
Bloxam  v.  Elsee 
Blue  V.  Marshall 
Blumenthal  v.  Tannenholz 
Blunt  V.  Melcher 
Boast  V.  Firth 
Bobb  V.  Barnura 
Bobo  r.  Bryson 

V.  Hansen 
Bodine  v.  Killeen 
Boggs  V.  Adger 
Bohn  V.  Headley 


Section 

Section 

489 

Boland  v.  Klink 

148 

449 

Bold  V.  Hutchinson 

180,  182 

107 

Bolingbroke  v.  Kerr 

86 

477,  487 

Bollin  V.  Shiner 

30 

227,  231 

Bolton  !\  Miller 

267  a,  457 

134 

Bond,  Ex  parte 

238,  304,  307 

235 

Bond  V.  Dillard 

295 

38 

V.  Lockwood       237, 

350,  367,  375, 

98 

388 

252  a 

Bones's  Appeal 

382 

183 

Bongard  v.  Cove 

155 

26,27 

Bonham  v.  Badgley 

16 

169 

Bonnell  v.  Berryhill 

332 

487 

V.  Holt 

448 

66 

Bonney  i'.  Reardin 

56,  415 

94 

Bonsall's  Case 

347 

439 

Bonslaugh  v.  Bonslaugh 

89 

360 

Boobier  v.  Boobier 

267  « 

272 

Boody  V.  McKenney 

435,  439,  441 

77 

Booker  v.  Worrill 

188 

29,  22.5 

Bookter,  Succession  of. 

317 

241 

Bool  I'.  Mix 

405,  409,  440 

105 

Boon  V.  Bowers 

330 

361 

Booth  V.  Dean 

473 

449 

Borst  V.  Spelman 

189 

16 

Bort,  In  re 

249 

348 

Borton  v.  Borton 

399 

398 

Boss  V.  Gomber 

154 

212 

Boston  Bank  v.  Chamberlain            438 

261 

Boston  Glass  Manufactory  v.  Bin- 

94,  323 

ney 

487 

453 

Best  wick.  In  re 

338 

148 

Matter  of 

240 

487 

V.  Atkins 

489 

235,  246 

Botham  v.  M'Intier 

347 

374,  376 

Botsford  V.  Wilson 

58,  95,  150 

261 

Boukniglit  v.  Epting 

114 

182 

Bourne  v.  Maybin       311, 

313,  348,  372 

439 

Bowden  v.  Gray 

81 

361,369 

Bowe  V.  Bowe 

275 

261 

Bowen  v.  Sebree 

124,  192 

316 

Bowers  v.  Bowers 

14,16 

114 

V.  State 

261 

16 

V.  Van  Winkle 

152 

473 

Bowles  V.  Dixon 

304 

281 

Bowman's  Appeal 

350 

471 

Bowser  v.  Bowser 

188 

381 

Bowyer's  Appeal 

89 

449 

Boyce  v.  Boyce 

38,42 

84 

V.  People 

261 

488 

Boyd  V.  Blaisdell 

260 

843 

V.  Boyd 

272,  368 

230 

V.  Gault 

367 

419 

V.  Glass 

328 

457 

V.  Sappington 

241 

361 

Boyden  v.  Boyden 

435,  441 

268 

Boyers  v.  Newbanks 

350 

437 

Boyes  v.  Bedale 

231 

168 

Boyett  V.  Hurst 

3.53 

353 

Boykin  v.  Ciples 

112,  123 

270 

Boyle  V.  Brandon 

261 

XXXll 


TABLE   OF   CASES. 


Section 


Boyle  V.  Parker 

Eoynton  v.  Clay 

V.  Dj-er 

V.  Hubbard 
Bozenian  v.  Browning 
Bracegirdle  v.  Heald 
Brackett  t;.'Wait 
Bradbury  i'.  Helms 
Bradford  v.  Bodfish 

V.  Green  way 

V.  Johnson 
Bradley  v.  Hughes 

V.  Pratt 

V.  Saddler 

17   State 
Bradshaw  ;;.  Beard 

V,  Bradshaw 
Bradstreet  v.  Baer 
Braly  v.  Reese 
Brame  v.  McGee 
Branch  v.  I)e  Bose 
Brand  v.  Abbott 
Bratney  v.  Curry 
Bray  v.  Wheeler 
Bra^'shaw  v.  Eaton 
Brazier  v.  Clark 
Breadalbane  v.  Chandos 
Breadalbane's  Case 
Bredin  v.  Dwen 
Breed  v.  Judd 

V.  Pratt 
Breed's  Will 
Breman  v.  Paascli 
Brenham  v.  Davidson 
Brent  r.  Grace 
Bressler  '■.  Kent 
Brevard  v.  Jones 
Brewer  v.  Harris 
Bridge  v.  Bridge 

V.  Brown 
Briers  v.  Hackney 
Briggs  V.  Briggs 

V.  McCabe 

V.  Morgan 

V.  Titus 
Brigham  r.  Boston,  &c.  " 

V.  Fawcett 

V.  Wheeler 
Brink  v.  Fay 
Brisbane  v.  Bank 
Briscoe  v.  Johnson 
Bristow  r.  Eastman 
Britton  v.  Williams 
Broadus  v.  Rosson 
Brock  V.  Parker 
Brockbank  v.  Whitehavi 

R.  R.  Co. 
Bronson  v.  Southbury 
Brookbank  v.  Kennard 
Brooke  i'.  Brooke 
Brooker  v.  Scott 


Section 


472,  475 

Brookfield  v.  Allen 

67 

450 

V.  Warren 

237 

372,  388 

Brooks  V.  Brooks 

369,  381 

272 

V.  Dent 

175 

402 

V.  Rayner 

367 

459,  471 

V.  Shelton 

155 

94 

Brown  v.  Ackroyd 

61 

473 

V  Belmarde 

226 

339 

V.  Black 

407 

13G 

V.  Bokee 

83 

169 

V.  Bonner 

183 

108 

V.  Brown           183,   189, 

198,  343, 

404,  412,  414 

399 

175 

V.  Burk 

272 

48 

V.  Caldwell 

402,  432 

199 

V.  Carter 

188 

239,  322 

V.  Chase 

313 

169 

V.  Christie 

361 

303 

V.  Clark 

105 

174 

V.  Croft 

462 

386 

V.  Deloach 

241 

353,  354 

V.  Dunham 

352 

207 

V.  Fifield 

77 

268 

V.  Gale 

89 

413 

V.  Hartford  Ins.  Co. 

402 

368 

V.  Hull 

450 

182 

V.  Johnson 

124 

26,  27 

.1'.  Jones 

175 

337 

V  Knapp 

269,  272 

411,  443 

V.  Lasselle 

57 

308,  380 

V.  Lent 

482 

339 

V.  Lynch 

230,  303 

41 

V.  McCune 

425 

330,  361 

V.  JNI'Donald 

270 

372 

V.  Midgett 

66 

94 

V.  Mullins 

338 

116,  203 

V.  Orr 

58 

457 

V.  Pat  ton 

66 

189 

V.  Peck 

218 

240 

V.  Probate  Judge 

366 

388 

V.  Purviance 

491 

48,  274 

V.  Ramsay 

262 

409 

V.  Scott 

270 

19 

V.  Smith 

238 

151 

V.  Snell 

295 

R.  R.  Co.     308 

V.  Welsh 

273 

188 

V.  Westbrook 

18 

290,  299 

V.  Wood 

53 

462 

Browning  v.  Reane 

18 

352 

Bruce  v.  Burke 

21 

372 

V.  Doolittle 

388 

424 

V.  Griscom 

272 

407 

V.  Wood 

90 

337 

Bruin  v.  Knott 

238,  239 

457 

Bruner  v.  Wheaton 

148 

en  Junction 

Brunnel  v.  Witherow 

174 

77 

Brunswick  v.  Litchfield 

•      31 

429 

Brush  V.  Blanchard 

273 

188 

Br3-an  v.  Duncan 

124 

106 

?'.  Jackson 

241 

411 

V.  INIanning 

361 

TABLE   OF   CASES. 


XXXlll 


Section 

Bryan  v.  T^ooks  200 

V.  State  487 

Bryant  v.  Hryant  155 

V.  Craig  353 

V.  Flight  473 

V  Livermore  453 

V.  Merrill  114 

V.  Richardson  411 

Bryce  v.  Wynn  311 

Brydon  v.  Stewart  492 

Bubbers  v.  Hardy  8(5 

Buchanan  v.  Grimes  372 

V.  Lee  114 

Bucher  v.  Ream  81 

Buck  V.  Ashbrook  12G 

V.  Buck  237 

V.  Fischer  86 

V.  Gilson  155 

V.  Goodrich  89 

V.  Wroten  ,  124 

Buckinghamshire  (Earl  of)  v.  Drury 

205 

238 

153,  154,  168 


Buckley  v.  Howard 
V.  Wells 


Buckner  v.  Davis  136 

Bucksport  V.  Rockland  267  a 

Buckwortli  0.  Buckworth  238 

Buell  V.  Shuman  95 

Buford  V.  Speed  72 

Bugbee  v.  Blood  64 

Bulklev  V.  Noble  272 

BuUard  v.  Briggs  188 

Buller  V.  Harrison  482 

Bullock  V.  Babcock  423 

V.  Knight  87 

Bullpin  V.  Clarke  134 

Bumpus  V.  Dotson  366 

Bunn  V.  Winthrop  281 

Burcher  v.  Ream  154 

Burdett  i'.  Cain  343 

Burdick  r.  Babcock  235 

Burge  V.  Barge  183 

Burger  v.  Belsley  77 

Burgess  v.  Burgess  16 

V.  Carpenter  487 

Burghart  v.  Anger&tein  413 

V.  Hall  413 

Burk  V.  Serrill  94 

Burke  v.  Louisville  R.  254 

Matter  of  238 

Burkett  v.  Trowbridge  71 
Burleigh  v.  Coffin                         83,  203 

Burley  v.  Russell  425 

Burlingame  v.  Burlingame  267 

Burnaby  v.  Griffin  133 

Burnard  v.  Haggis  424 

Burnet  v.  Burnet  328 

Burnett  v.  Hawpe  129 
Burnham  v.  Bailing                   372,  388 

V.  Holt  253 

V.  Seaverns  423 


Burns  v.  Hill 

424 

Burr  V.  Wilson 

267  a 

399 

Burritt  v.  Burritt 

237 

Burrow  v.  Gilbert 

388 

Burrows  v.  Bailey 

308 

Burrus  v.  Burrus 

448 

Bursen  v.  Goodspeed 

451 

Burson's  Appeal 

114 

Burton  i-.  Pierpont 

208 

V.  Sturgeon 

221 

V.  Tuniiell 

324 

Burwell  v.  Corbin 

450 

Bush  V.  Bush 

249 

V.  Lindse^' 

71 

Bushnell  r.  Bishop  Hill  Colo 

ny 

241 

Bussom  V.  Forsyth 

225 

227 

Butler  u.  Breck 

56 

410 

V.  Buckingham 

94 

V.  Butler 

181 

238 

V.  Freeman 

246 

288 

V.  Gastrin 

16 

V.  Slam 

273 

V.  Tucker 

475 

Butterfield  v.  Ashley 

260 

V.  Beall 

90 

V.  Forrester 

491 

V.  Heath 

175 

188 

V.  Sta'Uon 

188 

Buzzell  V.  Laconia,  &c.  Co. 

492 

Bybee  v.  Tharp 

338 

388 

Byerlee  v.  Mendel 

473 

Byers  v.  Des  Moines 

450 

V.  Thompson 

270 

Byrd  v.  Turpin 

360 

Byrne  v.  New  York  Central  R. 

428 

V.  Van  Hoesen 

290, 

311 

c. 


Caballero,  Succession  of  231 

Cadwell  v.  Siierman  252  a 

Caffee  v.  Kelly  82 

Caffey  v.  McMicliael  389 

Caffrey  v.  Darby  352 

Cahill  V.  Patterson  252  a 

Calame  v.  Calame  221 

Caldwell  v.  Drake  57 

Calhoun  v.  Calhoun  374 

Calkins  v.  Long  68 

Call  V.  Perkins^  119 

V.  Ruffin  377 

Callo  I'.  Brouncker  462 

Calmady  ;;.  Calmady  208 

Calvert  v.  Godfrey  357 
Camden  v.  Mullen                       169,  170 

Camelin  v.  Palmer  Co.  72 

Cameron  i'.  Baker  279 

V.  Malcolm  24 

Cammack  v.  Lewis  210 


XXXIV 


TABLE   OF   CASES. 


Section 

Campau  v.  Sliaw 

295 

Campbell  v.   Campbell 

254,  267  a, 

270 

52,  252  a,  487 

V.  Cooper                   2 

V.  Galbreath           80, 

117,  189,191 

V.  Gullatt 

26 

t;.  Ingilby 

3!)9 

V.  Mackay 

235,  334,  340 

V.  Stakes 

263,  424 

i\  Twemlow 

53 

?».  Wallace 

203 

Campion  v.  Cotton 

174,  203 

Canajolinrrie  v.  Jolmson 

278 

Canby  v.  Porter 

89 

Caney  v.  Bond 

352 

V.  Pal  ton 

61,68 

Canjolle  v.  Ferrie' 

225 

Cami  V.  Williams 

457 

Cannel  v.  Buckle 

176,  399 

Cannon  v.  Alsbury 

29,  402 

V.  Cannon 

225 

V.  Stuart 

457 

Canovar  v.  Cooper 

252  a 

Cantine  v.  Phillips 

71 

Cape  V.  Cape 

105 

Capehart  r.  Huey 

341 

Capel  V.  Powell 

221 

Capps  V.  Hickman 

339 

Card  V.  Jaffray 

177 

Cardress,  In  re 

399 

Carew  v.  Rutherford 

456 

Carey  v.  Berkshire 

77,  78,  259 

Carl  I'.  Wonder 

75 

Carleton  v.  Lovejoy 

82 

Carlisle  v.  Town  of  Shelon                  78 

V.  Tuttle 

230,  329 

Carll  V.  Prince 

19 

Carlj'sle  v.  Carlysie 

353 

Carmicliael  v.  Hughes 

238 

V.  Wilson 

338 

Carnahan  v.  Alderdice 

404 

Carne  v.  Brice 

106 

Carow  V.  Mowatt 

304 

Carpenter  v.  Carpenter 

140,  425,  446 

V.  Leonard 

151 

V.  McBride 

349 

V.  Mitchell 

148 

V.  Pridgen 

426 

Carr  v.  Carr 

82,  249 

V.  Clougli 

407,  409,  446 

V.  Taylor 

83 

Carrell  v.  Potter 

407,  435,  440 

Carrol  v.  Bird 

476 

Carroll  v.  Corbitt 

377 

V.  McCoy 

273 

Carskadden  v.  McGhee 

343 

Carson  i'.  Watts 

252  a 

Carter  ?».  Carter 

114,  218 

V.  Grlmshaw 

270 

V.  Howard 

64 

V.  Montgomery 

14 

Section 

428 

212 

173 

69 

118 

399 

448 

386 

194 

188 

86 

75 

93 

187 

87 

187 

399 

395 

349 

131 

260 

7 

491 

205 

459 

492 

430 

261 

440 

77 

472 

82,  390 

116,119 

177 

345 

319 

395 

263 

435,  437 

404 

380,  446 

372 

386,  388 

867 

338 

492 

148 

217 

V.  New  York,  &c.  E.  R.  Co.        490 

V.  Tibbits  342,  352 

V.  Williams  145 

Chappell  V.  Doe  448 

V.  Nunn  61,  67 

Chappie  !•.  Cooper  199,  413,  415 

Charles  v.  Coker  124,  137 

Chase  v.  Chase  221 

V.  Elkins  268 

V.  Hatliaway  308,  311 

V.  Smith  267  « 

Chatterton  v.  Young  143 

Cheatham  v.  Hess  188 


Carter  v.  Towne 

V.  Wann 
Cartledge  r.  CutlifE 
Cartvvright  r.  Bate 

V.  Cariwrigiit 
Caruthers  i'.  Carutliers 
Carver  v.  Carver 
Cary  v.  Cary 
Case  V.  Colter 

IK  Phelps 
Cassedy  v.  Jackson 
Cassin  v.  Delany 
Castle  V.  Wilkinson 
Caswell  V.  Hill 
Cateret  v.  Paschall 
Cathcart  v.  Robinson 
Catherine  Strong,  In  Be 
Cathing  r.  State 
Cato  V.  Gentry 
Caton  V.  Eideout 
Caughey  '•.  Smith 
Caulk  f.  Picou 
Cavanaugh  v.  Dinsmore 
Cave  v.  Roberts 
Cawthorn  v.  Cordrey 
Cnyzer  v.  Taylor 
Central  R.  R.  v.  Brimson 
Certwell  r.  Hoyt 
Chadbournc  v.  Eackliff 
Chamberlain  v.  Hazlewood 
Cliamberlin  v.  Morgan 
Chambers  v.  Perry 

V.  Richardson 

V.  Sallie 
Chambles  v.  Vick 
Champncy,  Ex  parte 
Chandler  v.  Commonwealth 

i\  Deaton 

V.  Glover 

V.  McKinney 

V.  Simmonds 
Chaney  v.  Smallwood 
Chanslor  v.  Chanslor 
Chapiu  V.  Livermore 
Chapline  v.  Moore 
Chapman  v.  Erie  E. 

V.  Foster 

V.  Gray 


TABLE   OF   CASES. 


XXXV 


Section 
Clieek  V.  Waldrum  89 
Clieesman  v.  Exall  477 
Cheever  r.  Congdon  388 
V.  Wilson  132,  133 
Cheney  v.  Arnold  27,  28 
V.  Pierce  72 
Cherokee  Lodge  v.  White  114 
Cheshire  v.  Barrett  435,  441 
Chesley  r.  Cliesley  53 
Clietwynd  v.  Clietwynd  249 
Cheuvete  v.  Mason  154 
Chew's  Instate  31G 
Chicago  R.  v.  Donahue  492 
Chicago,  &c.  R.  R.  Co.  v.  Jackson    492 
V.  McCartliy  4G1 
Chihl  r.  Sampson  150 
Childress  v.  Cutter  7 
V.  Mann  67 
Chikls  V.  McChcsney  155 
Ciiiles  V.  Nail  Mill  Co.  474 
Ciiilton  V.  Cabhiess  381 
Chitwood  V.  Cromwell  343 
Choen  v.  Porter  70 
Chorpenning's  Appeal  348,  386 
Chretien  v.  Husband  85 
Christensen  v.  Stumpf  170 
Chubb  V.  Stretcli  174 
Chunot  V.  Larson  72 
CInirch  V.  Jaqnes  128 
V.  Mansfield  490 
Churchill  v.  Dibbin  lOS 
Cincinnati  v.  Stone  461 
Cincinnati,  &c.  R.  R.  Co.  v.  Clark- 
son  475 
City  of  Chicago  v.  Major  429 
V.  Starr  429 
City  Council  v.  Van  Roven  58 
Clamorgan  v.  Lane  439 
Clanton  v.  Burges  187 
Clapp  V.  Greene  254 
V.  Stoughton  83,  89 
Clarges  ?;.  Albemarle  208 
Claridge  v.  Crawford  449,  450 
V.  Evelyn  394 
Clark,  In  re  338 
V.  Bank  of  Missouri  119 
V.  Bayer  75,  251 
V.  Burgh  88 
I'.  Burnside  350 
V.  Casler  343 
V.  Cassidy  22 
V.  Clark           40,  114,  193,  222,  241 
V.  Field  23,  2G 
V.  Fitch  207  n 
V.  Garfield  353 
V.  Goddard  419 
V.  Killian  187 
V.  McCreary  114 
V.  Montgomery            304,  339,  377 
V.  Rosenkrans  188 
V.  Smith  255 


Clark  V.  Tompkins 

V.  Turner 

V.  Waterman 

V.  Watson 

V.  Whitaker 
Clark's  Appeal 
Clarke  v.  Clay 

p.  Cordis 

V.  Darnell 

t'.  Gilmanton 

t'.  Leslie 

V.  McGeihan 

V.  Windham 

V.  Wi'ight 

V.  Van  Surlay 
Clarke's  Appeal 
Claussen  v.  La  Franz 
Clawson  v.  Clawson 
Clay  V.  Brittingham 

V.  Clay 
Clayton  v.  McKinnon 
Cleaveland  v.  Mayo 
Cleaver  v.  Kirk 
Cleghorn  v.  N.  Y.  Central  R. 
Clemenstine  v.  Williamson 
Clement,  Re 

V.  Mattison 

V.  Sigur 
Clements  v.  Crawford 
Clemson  v.  Bush 
Clerk  i\  Laurie 
Cleveland  v.  Hopkins 
Clcvestine's  Appeal 
Clifford  V.  Laton 
Clifton  71.  Goodbun 
Clinton  Man.  Co.  v.  Hummell 

V.  Rowland 

V.  York 
Clive  r.  Carew 
Clodfelter  v.  Best 
Cloud  V.  Hamilton 
Clough  V.  Bond 

V.  Clough 

V.  Russell 
Clowes  V.  Clowes 

V.  Van  Antwerp 
Coates  r.  Gerlach 

V.  Wilson 
Cochran  v.  McBeath 

V.  Van  Surlay 
Cochrane,  In  re 
Cockaj'ne,  Ex  parte 
Cockrell  v.  Cockrell 
Cocks  V.  Simmons 
Codrington  v.  Codrington 
Coe  V.  Wager 
Coe's  Trusts,  In  re 
CoflSn  V.  Bramlitt 

V.  Morrill 

V.  Shaw 
Coham  v.  Coham 


Section 

352,  373 
449 
468 
450 
370 
322 
372 

303,  330 
319 
451 

412,  414 
188 
124 
281 
330 
89,  99 
86 
122 
302 

353,  354 
385 
203 
272 
490 
436 

316,  319 
18 

317,  343 
225 
451 

134,  1.38 

308 

124 

63 

281 

165 

241 

267  a 

140 

352 

252  a,  267  a 

198 

399 

190 

23 

348,  375,  388 

188,  189,  191 

411 

174,  176,  180 

330 

45 

298 

317 

448 

221 

273 

240,  338 

353 

92 

252  a 

301 


XXXVl 


TABLE   OF   OASES. 


Section 

Cohen  v.  Armstrong-  433 

V.  Dry  Dock  R.  490 

V.  Shyer  338 

Colburn  v.  Patmore  478 

V.  State  369,  377 

V.  Woodworth  472 

Colby  V.  Lamson  168 

Colcock  V.  Ferguson  404 

Colcord  V.  Swan  95 

Cole  V.  Cole  18,  248 

V.  Eaton  337,  343 

V.  Gourlay  361,  363 

V.  Pennoyer  439,  440 

V.  Sceley  56 

V.  SlmrtleflF  56 

Coleman  ?;.  Davies  388 

V.  Hallowell  200 

V.  Semmes  153 

V.  Smith  324 

Coles  V.  Allen  372 

V.  Trecothick  179,  180 

Collett  V.  Dickenson  158 

Collins  V.  Brook  450 

V.  Collins  23,  217 

V.  Evans  470 

V.  Hoxie  281 

V.  Mitchell  66 

i>.  Price  472 

V.  Vining  339 

Colston  V.  Morris  246 

Colter  V.  Mclntire  366 

Coltman  r.  Hall  332 

Colton  ».  Goodson  316 

Columbine  v.  Penhall  174 

Colvin  V.  Currier  122 

r.  Holbrook  481 

Comegys  v.  Clarke  150 

Commissioners  v.  Hildebrand  65 

Commonwealth  v.  Addicks  248 

V.  Atkinson  457 

V.  Baird  467 

".  Briggs  248 

V.  Cox  367,  377 

V.  Curren  456 

V.  Fee  278 

V.  Feeney  50 

V.  Fletcher  154 

V.  Gamble  419 

r.  Green  395 

V.  Hamilton  237 

?'.  Hutchinson  398 

V.  Kcnney  17 

V.  Lewis  50 

V.  McAfee  44 

V.  Mead  395 

V.  M'Keagy  251 

V.  Moore  457 

V.  Mnnsey  50 

V.  Munson,  26,  27,  29 

V.  Murray  254 

V.  Ferryman  16 


Section 


Commonwealth  v.  Pratt 

50 

V.  Reed 

333 

V.  Rhoades 

329,  377 

V.  St.  John's  Asylum 

251 

V.  Tryon 

50 

V.  Van  Lear 

457 

Compton  V.  Compton 

805 

V.  Payne 

473 

Congdon  r.  Perry 

475 

Conkey  v.  Dickinson 

324,  373 

Conklin  v.  Doul 

164,  165 

V.  Ogliorn 

437 

V.  Thompson 

423 

Conlin  V.  (^antrell 

144 

7'.  Charlestown 

461 

Conn  V.  Conn 

237 

V.  Coburn 

414 

Conn.  L.  Ins.  Co.  v.  McCormick  150, 155 

Connelly  v.  Weatherly 

314 

Connolly  v.  Hull 

413 

Conovar  v.  Cooper 

267  a 

Conrad  v.  Lane 

425 

I'.  Le  Blanc 

146 

V.  Shorn 0 

155 

Conroe  v.  Birdsall 

404,  405,  425 

Converse  v.  Converse 

190 

Conway  v.  Reed 

428 

V.  Smith 

151 

Cook  V.  Baker 

172 

V.  Bradley 

265 

I'.  Cook 

248 

V.  Fearn 

183 

V.  Ligon 

71 

V.  Rainey 

374 

V.  Rogers 

448 

Cooke  V.  Beale 

317 

Cooke's  Case 

304 

Cookson  V.  Toole 

158 

Coolidge  I'.  Parris 

75 

V.  Smith 

150,  157 

Coombs  V.  Janvier 

380 

i\  Read 

114 

Coomes  v.  Houghton 

461 

Coon  V.  Cook 

824 

Cooney  i'.  Woodburn 

127 

Cooper  V.  Alger 

162 

V.  Cooper 

193 

V.  Ham 

166,  168 

V.  Hepburn 

301 

i\  Macdonald 

107 

V.  Maddox 

196 

?\  Martin 

61,  237,  273 

V.  Phillips 

468 

V.  Rhodes 

391 

V.  State 

429,  467 

V.  Summers 

303 

V.  Sunderland 

361 

V.  Thornton 

304 

Cooper's  Case 

816 

Copeland  v.  Cunningham 

165 

u.  State 

278 

TABLE   OF   CASES. 


XXX  VU 


Section 

Section 

Copp  V.  Copp 

300 

316,  317 

Cray  v.  Mansfield 

388 

Coppin  V. 

83 

Credle  v.  Carrawan 

174 

Corbet !;.  Tottenham 

287,  318 

Creen  v.  Wright 

464 

Corbin  v.  American  Mills 

4<Jl 

Crehore  v.  Crehore 

23 

Corbitt  V.  Carroll 

366,  382 

Crenshaw  v.  Crenshaw 

342,  373 

Corcoran  v.  Allen 

339,  349 

Cresinger  v.  Welch             435, 

439,  446 

Cordova,  Re 

300,  305 

Creuze  v.  Hunter 

246 

Corey  v.  Burton 

407 

409,  446 

Cricket  v.  Dolby 

281 

V.  Corey 

2G7  u,  208 

Crocker  v.  Molyneux 

458 

Corgell  V.  Dunton 

138 

Croft  ('.  Alison 

490 

Corlass,  In  re 

226 

V.  Terrell 

317 

Corn  Excliange  Ins.  Co.  v. 

Babcock  145 

Crofts  V.  Middleton 

134 

Cornelia  v.  Ellis 

61 

V.  Waterhouse 

490 

Corpe  ('.  Overton 

408,  414 

Cromwell  v.  Benjamin 

65,  241 

Corrie  v.  Corrie 

248 

Cronise  v.  Clarke 

404 

Corrie's  Case 

397 

Crook  V.  Hill 

281 

C'orrigan  v.  Kiernan 

299 

300,  311 

Crooks  V.  Turpin 

326 

V.  Union  Sugar  Refinery 

490 

Cropsey  v.  McKinney 

82, 164 

Corwin  v.  Shoup 

435,  448 

Crosbie  v.  Hurley 

394 

Cory  V.  Gertcken 

389 

Crosby  v.  Crosby 

324,  374 

Costigan  v.  Mohawk  R.  R 

.Co 

473 

Crose  V.  Kutledge 

53 

Cothran  v.  Lee 

61,  63,  64 

Cross  V.  Guthery 

77 

Cotteen  ;-•.  Missing 

189 

V.  Noble 

94 

Cotterell  v.  Homer 

174 

Grouse  v.  Morse 

19D 

Cotton  V.  State 

367 

Crowell's  Appeal 

373 

V.  Wolf 

318 

Crozier  v.  Bryant 

77 

Cottrell's  Estate,  In  re 

238,  239 

Crozier's  Appeal 

206 

Countess  da  Cunlia,  Goods 

of 

329 

Crugery.  Douglas 

190 

Counts  V.  Bates 

402 

Cruger  v.  Heyward 

238 

Courtright  t>.  Courtright 

237,  241 

Crumb,  Ex  parte 

316 

Coverdale  r.  Eastwood 

178 

Crump  V.  Gerock 

372 

Covington  v.  Leak 

353 

V.  McKay 

77 

Cowan  V.  Anderson 

343 

Crutchfield,  Ex  parte 

316,347 

V.  Mann 

164,  165 

Crutchfield's  Case 

305 

Cowan's  Appeal 

389 

Crymes  v.  Day 

402 

Cowden  v.  Pitts 

92 

Cuekson  r.  Stones 

474 

V.  Wright 

259,  262 

Cuckson  V.  Winter 

394 

Cowell  11.  Daggett 

255 

Cummings  v.  Cummings  206, 

338,  372, 

Cowles  V.  Covvles 

19,  316 

374 

V.  Morgan 

145 

I'.  Powell 

406,  409 

Cowley  V.  People 

244 

Cummins  v.  Sharpe 

143 

V.  Robertson 

67 

Cunningham  v.  Cunningham 

227,  373 

Cowls  V.  Cowls 

239 

i\  Pool 

374 

Cowton  V.  Wickersham 

94 

V.  Reardon 

199 

Cox  V.  Combs 

22 

Currie  v.  Turnbull 

27 

V.  Hoffman 

72 

Curry  i:  Bott 

120 

V.  Kitchin 

67 

V.  Fulkinson 

198 

V.  Midland  Counties  R.  R 

Co.  489 

Curtin  v.  Patton                  404 

437,  445 

V.  Morrow 

198 

Curtis  I'.  Bailey 

373,  377 

V.  Muncey 

457 

V.  Curtis                       250 

272,  457 

V.  Storts 

240,  262 

i;.  Engel 

128 

Cozine  v.  Home 

305 

V.  Hobart 

350 

Cozzens  v.  Whitney 

136, 

143, 149 

I'.  Rippon 

301 

Cramer  v.  Reford 

81,  108 

Curtiss  V.  McDougal 

446 

Crane  v.  Barnes 

372 

Curtton  V.  Moore 

56 

V.  Brice 

82 

Gushing  v.  Gushing 

272 

V.  Crane 

226 

Cussons  V.  Skinner 

463 

V.  Kelley 

145 

Cutler  v.  Cutler 

38 

Cranston  v.  Sprague 

366 

V.  Powell 

472,  473 

Cranz  v.  Kroger 

253 

Cutting  V.  Seabury 

260 

Crapster  v.  GriflSith 

391 

Cuyler  v.  Wayne 

352,  361 

XXXVlll 


TABLE   OF   CASES. 


D. 

Dagley  v.  Tolferry 
D'Aguilar  v.  D'Aguilar 
Dailey  v.  Dailey 
Dain  v.  Wyckoff 
Dale  ;;.  Robinson 


Section 

286,  304 

46 

248 

261,  262 

136 


Daley    v.  Norwich    &    Worcester 

R.  R.  Co.  428,  429 

Dallam  v.  Walpole  137 

Dalrymple  v.  Dalrymple  23,  26,  27 

Dalton,  In  re  399 

D'Alton  V.  Alton  249 

V.  D'Alton  235 

Dalton  V.  Gib  413 

V.  Halpin  279 

V.  Jones  3;59 

V.  State  298 

Damarell  v.  Walker  S16,  317 

Damon  v.  Osborn  4b8 

Dana  V.  Coombs  438,441 

V.  Short  464 

V.  Stearns  435 

DanenhofEer  v.  State  244 

Daniel  v.  Hill  230,  334 

V.  Newton  306 

V.  Sams  225 

V.  Swearengen  461,  487 

Dankel  v.  Hunter  94 

Dannelli  v.  Dannelli  226 

Darby  v.  Calligan  148 

Dardier  v.  Chapman  86 

Darkin  v.  Darkin  131 

Darley  v.  Darley  105,  238 

Darling  v.  Noyes  241 

Darlington  v.  Pulteny  90 

Darlington's  Appeal  155 

Daubenspeck  v.  Biggs  183 

Daubney  v.  Hughes  70,  71 

Davenport  r.  Bishop  174 

V.  Olmstead  377 

Davey  v.  Turner  94 

Davidson  v.  Graves  175 

V.  Lanier  150,  188 

V.  State  398 

V.  Young  439 

Davies  v.  Davies  399,  473 

V.  Jenkins  159 

V.  Locket  450 

V.  Solomon  77 

V.  Turton  443 

V.  Williams  261 

Davis  y.  Baugh  397 

V.  Cain  124 

v.  CaldweU  411,412,413 

V.  Davis  92,  188 

V.  Detroit,  &c.  R.  R.  Co.  492 

V.  Dickson  376 

V.  Dinwoody  63 

V.  Dudley  405,  437,  439 

V.  Foy  114 

V.  Goodenow  269,  273 


Section 

Davis  V.  Harkness 

338 

V.  Herrick 

187 

!'.  Jones 

93 

V.  McCurdy 

367 

V.  Meredith 

488 

r.  Prout 

105 

V.  Roberts 

338 

Davis's  Appeal 

82,92,347 

Davison,  Matter  of 

240 

V.  Atkinson 

104,  111 

V.  Johonnot 

308,  330 

Dawes  v.  Howard 

239 

V.  Rodier 

166 

Dawson,  Ex  parte 

829 

V.  Dawsou 

265,  281 

V.  Jay 

a34 

V.  Massey 

884,  389 

Day  t'.  Burnham 

64 

V.  Croft 

105 

V.  Everett 

252 

V.  Messick 

56 

V.  Oglesby 

252  a 

V.  Padrone 

83 

Dayton  v.  Dusenbury 

114 

V.  Walsh 

167 

Dean  v.  Bailey 

154 

V.  Brown 

111 

V.  Richmond 

222 

V.  Shelly 

95 

V.  State 

225 

Deane  v.  Annis 

241 

Deare  v.  Soutten 

61 

Deason  v.  Boyd 

435 

De  Bathe  v.  Lord  Fingal 

299 

Debenham  v.  Mellon 

63,  64,  69 

Dedham  v.  Natick 

239 

Deerfield  v.  Delano 

493 

Deery  v.  Cray 

94 

Deford  v.  Mercer 

385 

Degg  V.  Midland  R.  R.  Co. 

492 

De  Graff  y.  N.  Y.  Central  R 

429,  492 

Delafield  v.  Tanner 

451 

De  la  Montagnie  v.  Union  Ins.  Co.  352 

Delano  v.  Blake 

435 

V.  Blanchard 

72,82 

De  Leon  v.  Echeverria 

472 

De  Manneville  v.  De  Manneville     246, 

288,  3-34 

Demarest  v.  Wynkoop 

94,  137 

De  Mazar  v.  Pybus 

300 

Deming  v.  Williams 

189,  217 

Demyer  v.  Souzer 

487 

Den  V.  Demarest 

95 

V.  York 

188 

Dengenhart  v.  Cracraft 

360 

Denison  v.  Dcnison 

26,27 

Dennis  v.  Clark 

258 

V.  Crittenden 

53 

Dennison  v.  Page 

225 

Dennysville  v.  Trescott 

267  o 

Dent  V.  Bennett 

389 

TABLE   OF   CASES. 


XXXIX 


Section 

Dermott  v.  Jones  475 

Derocher  v.  Continental  Mills           443 

l)e  Roo  I'.  Foster  425 

Descelles  v.  Kadnius  Ci(J 
l)e  Thoren  r.  Attorney-General    26,  27 

Devanbagh  v.  Devanbagh  19 

Dewey,  Petitioner  394 

De  Witte  v.  Palin  35ii 

Dexter  v.  Blanchard  241 

V.  Cranston  301 

Diaper  v.  Anderson  '                    372 

Dibble  y.  Dibble  301,311 

t'.  Jones  426 

Dickens  v.  New  York  Central  R.  R.  Co. 

78 

Dickenson  v.  Blisset  18 

Dickerman  v.  Graves  53 

Dickorson  r.  Brown  26 

r.  Dickerson  316 

Dickinson  v.  Winchester  253 

Dicks  V.  Grissoni  267  a 

Dickson  v.  Dickson  13 

V.  Miller  128 

Dieringer  v.  Meyer  402 

Dierker  v.  Hess  267  a,  268 

Diettrich  v.  Heft  348 

Dilk  V.  Keighley  408 

Dill  V.  Bowen  446 

Dillaye  v.  Greenougli  176,  183 

Dillon  V.  Lady  Mount  Cashell           318 

Disbrow  v.  Henshaw  316 

Ditcham  v.  Worrall  433 

Ditson  V.  Ditson  13 

Dixon  V.  Bell  486 

V.  Dixon  110, 137,  140,  218 

V.  Hamond  477 

V.  Homer  875 

V.  Hiirrell  64,  69 

V.  Merrett  96,  405,  438 

V.  Olmius  105 

Doane  v.  Covel  457 

Dobbins  V.  Higgins  472 

Dobson  V.  Butler  221 

Docker  v.  Somes  386 

Dodd  V.  Benthal  96 

Dodge  V.  Favor  267  n 

Doe  V.  Hassell  386 

V.  I-Iimelick  480 

V.  Jackson  863 

V.  Manning  187 

V.  Rusham  187,  189 

V.  Weller  90 

I'.  Wilkins  87 

Doker  v.  Hasler  53 

Dollner  v.  Sno\y  58 

Dominick  v.  Michael  402,  440 

Donahoe  v.  Richards  260 

Donne  r.  Hart  88 

V.  Harte  131 

Donnington  v.  Mitchell  197 

Donovan  v.  Needham  240 


Section 

Donovan's  Appeal  146 

Doolan  r.  Blake  110 

Dorin  v.  Dorin  281 

Dorman  v.  Ogbourne  303 

Dorr,  Petitioner  847 

Dorrell  v.  Hastings  411 

Dorslieimer  u.  Roorback  453 

Douglas  V.  Gausman  162 

V.  Watson  444 

Douglas's  Appeal  339,  372 

Douglass  V.  Fulda  150 

V.  Slate  388 

Dover  v.  McMurphy  237 

Dow  V.  Clark  450 

V.  Evster  61 

V.  Je'well  94 

Dowling,  In  re  94 

V.  jMaguire  134 

Dovvnin  )'.  Sprecher  303 

Downing  v.  Peabody  367 

V.  Seymour  88 
Downs  V.  N.  Y.  Central  R.  R.  Co.    429 

Doyle  V.  Kelly  68 

Drake  v.  Ramsey  439 

Drane  v.  Bayliss  324 

Draper  v.  Draper  398 

V.  Joiner  354 

Draper's  Case  87 

Drayton  v.  Reid  462 

Dresel  o.  Jordan  60,  72 

Drew  r.  Peck  well  457 

V.  Sixth  Avenue  R.  R.  Co.         262 

Driver  v.  Driver  453 

Druet  V.  Druet  279 

Drumb  r.  Keen  251 

Drury  v.  Conner  350 

V.  Drury  399 

V.  Scott  107 

Drybutter  v.  Bartholomews  91 

Dryer  v.  Lewis  473 
Dublin  &  Wicklow  R.  v.  Black  442,  451 

Dubois  V.  Jackson  114 

Dubose  V.  Wheddou  404,  414 

Du  Boulay  v.  Du  Bonlay  280 

Duckworth  w.  Johnson  259,  262 

Duddy  V.  Greshani  82 

Duel  V.  Harding  486 

Duffey  V.  Shock ey  460 

Dufield  V.  Cross  252 

Duke  V.  State  303 
Duke  of  Beaufort  v.  Berty  246, 316,  321 
Duke  of  Hamilton  c.  Lord  Mohun   888 

Dula  V.  Young  126 

Dumain  v.  Gwvnne  251 

Dumaresly  v.  Fishly  26,  27 

Dumas  v.  Neal  165 

Dunbar  v.  Tilize  145 

Duncan  c.  Cashin  162 

Duncan  v.  Crook  292 

V.  Duncan  26,  27 

V.  Pope  279 


xl 


TABLE   OF   CASES. 


Section 


Duncan  v.  Roselle 

162 

Dunham  v.  Hatcher 

299 

Dunn  V.  Lancaster 

210 

V.  Sargent 

84 

114 

Dunnahoe  ;;.  Williams 

72 

Dun  ton  t>.  Brown         408,  409, 

442 

446 

J)untze  V.  Levett 

13 

Dupre  V.  Rein 

217 

218 

Dupuy  V.  Welsford 

449 

Durant  v.  Ritchie 

192 

Durell  V.  Hay  ward 

199 

Duress  v.  HornefFer 

161 

Durgin  !\  Munson 

492 

Durnford  v.  Lane 

3lt9 

Durrant  v.  Friend 

281 

Dutcher  v.  Hill 

361 

Dutton  V.  Dutton 

217 

Dyce  Sombre's  Case 

311 

Dye  V.  Kerr 

269 

Dyer,  Matter  of 

301 

311 

V.  Brannock 

20 

V.  Cornell 

357 

Dyer's  Case 

301 

Dygert  v.  Remerschneider 

188 

E. 


Eager  v.  Grimwood  260,  261,  262 

Eagle  Fire  Ins.  Co.  v.  Lent  405 

Eames  v.  Sweetser  71 

Earl  V.  Dresser  329 

Earl  V.  Ferris  105,  134 

Earl  of  Ilchester,  .E.r/)arte  287 

Earl  of  Ilcliester's  Case  333 

Earl  of  Shaftesbury  v.  Lady  Hannam  287 

Earle  r.  Crum  326 

V.  Dawes  277 

V.  Peele  414 

V.  Reed  414 

Eastland  v.  Burchell  68 

Eaton  V.  Hill  424 

V.  Nason  94 

EbersoU  v.  King  79 

Eberts  v.  Eberts  388 

Echols  V.  Fleming  472 

Eckford  v.  De  Kay  385 

Edgar  v.  Castello  259 

Edgarfon  ;•.  Wolf  446 

Edgerly  v.  Edgerly  190 

V.  Shaw  435 

Edgerton  r.  Jones  155 

Edmonds'  Appeal  44 

Edmondson  r.  Machell  261 

Edrington  v.  Harper  89 

r.  Leach  474 

'Edwa.vds,  Ex  parte  301 

In  re  448 

V  Crume  263 

".  Davis  241,  265 

r.  Freeman  272 


Edwards  v.  Jones 

V.  State 

V.  Stevens 

V.  Taliafero 
Eichelberger's  Appeal 
Eitel  V.  Walter 
Elderton  v.  Emmens 
Eldred  v.  Drake 
Eldridge  v.  Lippincott 

V.  Preble 
Elgin's  Case 
Elijah  V.  Taylor 
Eliott  I'.  Gower 
Ellington  v.  Ellington 
Elliott  V.  Bently 

V.  Horn 

V.  Teal 
Ellis  V.  Ellis 

V.  Scott 

V.  Woods 
Ellison,  Matter  of 

V.  Ellison 
Ellsworth  V.  Hinds 
Elrod  V.  Lancaster 

V.  Myers 
Elton  V.  Shephard 
Elwell  V.  Martin 
Elzey  V.  Elzey 
Emerson,  Appellant 

V.  Spicer 
Emery  v.  Emery 

V.  Gowan 

V.  Kempton 

V.  Neighbour 

V.  Ware 

V.  Vroman 
Emmet  v.  Korton 
Emmons  v.  Murray 
Enders  r.  Beck 
England  v.  Downes 
English  V.  Foxall 

V.  Wilson 
Epperson  i-.  Nugent 
Errat  v.  Barlow 
Eslinger  i'.  Eslinger 
Es]iey  V.  Lake 
Essex  V.  Atkins 
I'jSscx  v.  Essex 
Estill  V.  Rogers 
Etherington  v.  Parrott 
Ewers  v.  Hutton 
Ewing  V.  Helm 
Evans  v.  Bennett 

V.  Chester 

V.  Davies 

V.  Evans 

V.  Knorr 

V.  Nealis 

V.  Walton 
Evarts  v.  Nason 
Evelyn  v.  Templar 


Section 

189 

50 

169 

351 

342 

241 

469 

187 

298 

114,  liO 

318 

154 

130 

261 

162 

416 

202 

414 

372 

124 

263 

189 

92 

386 

413 

106 

424 

18 

375 

290 

66 

261 

252  a 

68 

93,94 

361 

63,  64,  68 

409,  439 

75 

181 

173 

473,  475,  478 

412,  413 

240 

7 

326,  389 

138 

19 

26 

63,  66,  69 


120 

474 
57 
281 
40 
124 
117 
261 
375 
187 


374, 


TABLE   OF   CASES. 


xli 


Section 

Section 

Everett  v.  Sherfey        252 

a,  260,  207  a 

Fewings  v.  Tisdal 

458 

,472 

Evcritt  V.  Everitt 

183 

Fidler  v.  Higgins 

357 

Everson  v.  Carpenter 

40 J,  437 

Field  r.  Goldsby 

361 

Evertson  v.  Evertson 

3S4 

V.  Lucas 

343 

Eyre  v.  Countess  of  Shaftesbury    313, 

V.  Moore 

399 

321,  333,  390 

V.  Schieffelin 

350 

Eystra  v.  Capelle 

153 

V.  Sovvle 

V.  Torrey 

Fielder  v.  Hanyer 

134 

382 
200 

F. 

Fields  V.  Law 
Filleul  r.  Armstrong 

298 
462 

Fairbank  v.  Haentzsclie 

492 

Filliter  c.  PhipparU 

490 

Fairland  v.  Percy 

204 

Filmer  v.  Lynn 

63 

Fairlie  v.  Hastings 

480 

Finch  V.  Finch 

175 

Falmouth  Bridge  Co.  v.  Tibbetts        95 

i\  Gore 

457 

Fanning  v.  Chadwick 

382 

Finley  v.  Jowle 

449 

Fant  V.  McGowan 

319 

Finn  v.  Finn 

53 

Farmer  v.  McDonald 

255 

Finnell  v.  O'Neal 

354 

Farmers'  Bank  v.  Brooke 

187 

Finney  v.  State 

306 

V.  Long 

188 

Firebrace  v.  Firebrace 

218 

Farmington  r.  Jones 

237 

Firth  V.  Denny 

206 

Farnsworth  v.  Oliphant 

373 

Fish  V.  Miller 

389 

V.  Richardson 

251 

Fislier  v.  Fisher 

269 

Farr  r.  Sherman 

150 

V.  Lunger 

457 

Farrance  v.  Viley 

338 

V.  Mowbray 

404 

Farrar  v.  Bessey 

57 

Fisk  I'.  Flores 

7 

Farrell  v.  Farrell 

267  « 

V.  Lincoln 

337 

V.  Ledwell 

53 

Fitcli,  Re 

329 

V.  Patterson 

114,  120 

V.  Ayer 

124 

Farrer  v.  Clark 

806 

V.  Peckham 

268 

Farrington  c  Wilson 

303 

V.  Rathbun 

119 

Farvvell  v.  Boston  &  Worcester  R. 

Filler  v.  Fitler 

237 

R.  Co. 

492 

Fitts  V.  Hall 

424 

V.  Steen 

354,  370 

Fitzgerald  v.  Chapman 

218 

Faucett  v.  Currier 

150 

V.  Fitzgerald 

290 

Faulkner  f.  Davis 

356 

Fitzgibbon  v.  Lake 

361 

V.  Erie  R.  R.  Co. 

492 

Fitzliue  r.  Dennington 

391 

Favorite  v.  Booher 

377 

Fitzpatrick  v.  Fitzpatrick 

20,30 

Fawcet  v.  Beavres 

487 

Flanagan  v.  Flanagan 

92 

Favvcett  i\  Cash 

458 

Flanders  v.  Abbey 

146 

Fay  V.  Ilurd 

316,  319 

Fleet  V.  Perrins 

83 

200 

i;.  Taylor 

369 

Flenner  v.  Flenner 

179 

Fears  v.  Brooks 

124,  136 

Fletcher  v.  Ashley 

181 

Feeley,  Re 

304,  307 

V.  Fletcher 

345 

353 

Felch  V.  Allen 

492 

V.  People 

244 

Feller  v.  Alden 

154 

V.  Walker 

352 

Fellows  V.  Tann 

123 

Flinn,  Re                              843 

346, 

350 

Felthani  i\  England 

492 

Floyd  I'.  Calvert 

26 

Felton  V.  Long 

382,  388 

V.  Johnson 

385 

Fendall  v.  Goldsmied 

40 

Flynn  v.  Beebe 

492 

Fen  ton  v.  Lord 

150 

Fogler  V.  Buck 

370 

385 

Feran  v.  Rudolphsen 

168 

Folger  V.  Heidel 

889 

388 

Ferguson  v.  Bell 

405,  439 

FoUit  V.  Koltzow 

279 

V.  Bobo 

420 

Foltz's  Appeal 

372 

V.  Brooks 

75 

Fonda  v.  Van  Home          270, 

285 

405 

V.  Lowery 

389 

Forbes  v.  Moore 

7 

V.  Reed 

58 

Ford  V.  Miller 

337 

Fernslee  v.  Moyer 

335 

;;.  Monroe 

262 

Fetrow  v.  Wiseman 

404 

V.  Phillips 

435 

Fettiplace  v.  Gorges 

131 

V.  Stuart 

173 

174 

Fewell  V.  Collins 

77 

V.  Teal 

94 

xlii 


TABLE   OF   CASES. 


Foreman  v.  Foreman 

V.  Murray 
Foresinan  ;;.  Haag 
Forinari  v.  Marsli 
Forstall,  Succession  of 
Forster  v.  Fuller 
Forsyth  v.  Hastings 
Fortier,  hi  re 
Foss  V.  Foss 
Foster  v.  Alston 

V.  Bisland 

V.  Denny 

V.  Essex 

V.  Essex  Bank 

V.  Kerr 

V.  Mott 

V.  Waterman 

V.  Wilcox 
Foteaux  i'.  Lepage      824,  338, 
Fountain  v.  Anderson 

V.  Boodle 
Foust  v.  Chamblee 
Fowle  V.  Freeman 

V.  Tidd 
Fowler  v.  Colt 

V.  Frisbie 

V.  Rice  110, 

V.  Seaman 

V.  Shearer 
Fowlkes  V.  Baker 
Fox,  Ex  parte 

V.  Davis 

V.  Doherty 

V.  Hawks  104, 

V.  Jones 

V.  Kerper 

V.  Minor 
Frampton  ?'.  Frampton 
Francis  v.  Felmot 
Frank  v.  New  Orleans 
Frankfort  v.  New  Vineyard 
Franklin  i".  Mooney 

V.  South-Eastern  R.  R.  Co 
Franks  v.  Martin 
Eraser  v.  Zylioz 
Frasher  v.  State 
Frazier  v.  Massey 

V.  Rowan 

V.  Steenrod 
Frecking  v.  Rolland 
Frederick  v.  Cox  well 

V.  Moore 
Freeman  v.  Bridger 

V.  Flood 

V.  Freeman 

V.  Hartman 

V.  Hill 

V.  Holmes 

V.  Robinson 
Freestone  v.  Butcher 
Freiberg  v.  Branigan 


Section  I 


Section 


448 

French  v.  Allen 

275 

338 

V.  Currier 

353,  354 

361 

V.  Davidson 

339 

357,  448 

V.  French 

186 

232 

V.  Motley 

188 

_  344 

V.  Tliompson 

345 

435,  457 

Freto  V.  Brown 

237,  273 

205 

Freund  v.  Washburn 

829 

23 

Fridge  v.  Stale 

388,  404 

248,  333 

Friend  v.  Thompson 

41,  237 

377 

Friend's  Case 

468 

317 

Friermutli  v.  Friermuth 

269 

4U1 

Frierson  '•.  Travis 

451 

263 

Frost  V.  Tarr 

273 

124 

V.  Willis 

69 

305 

V.  Winston 

354 

232 

Fry  V.  Derstler 

77 

95 

V.  Fry 

123 

354,  376 

Fudkins  v.  Walker 

443 

345 

Fulgham  v.  State 

44 

476 

Fuller  V.  Jewett 

492 

372 

V.  Naugatuck  R.  R.  Co. 

78 

177 

V.  Wing 

348,  370 

162 

Fullerton  v.  Jackson 

290 

272 

Fulton  V.  Fulton 

46 

77 

V.  Smith 

272 

120,  155 

Fuqua,  Succession  of 

305 

151 

V.  Hunt 

343 

95 

Furlong  v.  Bartlett 

446 

241 

V.  Hyson 

64 

188 

Furman  v.  Coe 

348 

217,  218 

V.  Van  Sise 

261 

210 

Furrillio  v.  Crowther 

279 

105,  189 

Fussell  V.  Dowding 

221 

155 

Fynn,  /)(  re 

246 

349 

Fynn's  Case 

304 

308,  343 

216 

443 

G. 

259 

267  a 

G.  r.  G. 

19 

419 

Gaffney  v.  Hayden 

443 

262 

Gage  V.  Dauchy 

154 

178,  180 

V.  Reed 

57,75 

361 

Gager  v.  Henry 

361 

13 

Gailey  r.  Crane 

436 

402 

Gaines  v.  Mining  Co. 

225 

443 

V.  Poor 

124 

361 

V.  Spann 

299 

167 

Gainor  v.  Gainor 

181 

93 

Galbraith  r.  Black 

270 

367 

Gale  V.  Gale 

174 

412,  413 

I'.  Parrot 

252,  267  a 

129 

r.  Wells 

349,  389 

269,  274 

Galvin  v.  Crouch 

261 

181 

Gamber  v.  Gamber 

120 

176 

Gandall  v.  Pontigny 

472 

61 

Gann  v.  Worman 

259 

241 

Gannard  v.  Eslava 

189 

63 

Gannaway  v.  Tapley 

384 

168 

Gans  V.  Williams 

115,  116 

TABLE   OP   CASES. 


xliii 


Gardiner  v.  Holt 
Gardner  v.  Baker 

V.  Gardner 

V.  Heyer 

V.  Hooper 

V.  Sehooley 
Gar  in  v.  Burton 
Garlick  v.  Strong 
Garner  v.  Board 

V.  Gordon 
Garth  V.  Howard 
Garthshore  v.  Clialie 
Garver  v.  Miller 
Garvin  ?'.  Ingram 

V.  Williams 
Gary  !>.  Cannon 

V.  James 
Gaston  v.  Frankum 
Gaters  v.  Maddeley 
Gates  V.  Davenport 
Gaudet  V.  Gaudet 
Gault  V.  Saffin 
Gazynski  v.  Colburn 
Gee  V.  Gee 

V.  Scott 
Gelston  v.  Frazier 
Genet  v.  Tallmadge 
Genner  v.  Walker 
George,  In  re 

V.  Ransom 

V.  Spencer 

V.  Thomas 

V.  Van  Horn 
Georgia  E.  R.  Co.  v. 
Getts,  Petition  of 
Geyer  v.  Branch  Bank 
Gholston  V-  Gholston 
Gibbs  V.  Harding 

V.  Merrill 
Gibson  v.  Commonwealth 

V.  Erie  R. 

V.  Gibson 

V.  AValker 
Gifford  V.  Kollock 
Gilbert  v.  Guptill 

V.  Lewis 

V.  McEachen 

V.  Schwenck 

V.  Wetherell 
Gilchrist  v.  Cator         ' 
Gilker  v.  Brown 
Gill,  Matter  of 

V,  Read 

V.  Slieliey 

('.  Woods 
Gillespie  v.  Bailey 

V.  Burlinson 

V.  Worford 
Gillet  V.  Stanley 
Gillett  V.  Camp 
Gilliat  V.  Giliiat 


Wynn 


35c 


Section 
451 
1S8 

137,  22G 
281 
114 

2G9,  270 
404 
188 
443 

248,  332 
489 
205 
217 
192 
389 
353 
267  a 
134 
83 

443,  473 
318 
120 
79 
128 
53 
133 
342 

411,  412 

272 

155 

189 

440 

2«1 

78 

373 

124 

44 

218 

426 

53 

492 

77 

138 

252  a 

,  372,  382 

105 

338 

321,  822 
272 
105 
393 
374 
237 
281 

155,  198 

437,  439 

124 

94 

405 

273 

287,  299 


Section 

Gilman  v.  Andrus  61,  64 

V.  Dwight  400 

V.  Eastern  R.  R.  Co.  492 

Gilmartin  v.  New  York  490 

Gilmore  v.  Rodgers  361 

Gilson  V.  Spear  425 

v.  Zimmerman  193 

Ginn  v.  Ginn  252  a 

Ginochio  v.  Porcella  208,  212 

Giraud  v.  Richmond  459 

Girty  v.  Logan  452 

Girvin  i'.  Hickman  37(5 

Gishwiler  v.  Dodez  248 

Given  v.  Charron  472,  475 

V.  Marr  221 

Glascott  V.  Warner  303 

Glass  V.  Glass  21 

V.  Warwick  143 

Glassey  v.  Hestonville,  &c.  R.  259 

Glaze  V.  Blake  81,  162 

Gleason  v.  Emerson  221 

V.  Gleason  38 

Glen,  Ex  parte  18 

Glenn  v.  Hill  61 

Glidden  v.  Taylor  154 

V.  Unity  457 

Gloucester  v.  Page  305 

Glover,  Ex  parte  240 

V.  Alcott  ir.) 

V.  Glover  348 

V.  Ott  411 

V.  Proprietors  of  Drury  Lane  80, 

81 

Godard  v.  Wagner  238 

Godfrey  v.  Brooks  64,  164 

Goff  V.  Rogers  188 

Goldsmith  v.  Russell  174,  186 

Goldstein  v.  People  50 

Goleman  v.  Turner  343 

Gonsolis  V.  Gearhart  462 

Good  V.  Good  305 

V.  Harris  124,  127 

Goode  V.  Harrison  408,  434,  442 

Goodenougli,  In  re  250,  251 

Goodliue  V.  Dix  493 

Goodman  v.  Kennell  491 

V.  Pocock  472,  473 

V.  Winter  363,  448 

Goodnow  V.  Hill  146 

Goodrich  v.  Bryant  217 

V.  Goodrich  24V) 

V.  Tracy  72 

Goodright  v  Straphan  90,  91 

Goodrum  v.  State  53 

Goodsell  V.  Myers  404,  435,  445 

Goodson  V.  Goodson  386 

Goodwin  v  Kelly  72 

V.  Moore  449 

V.  Thompson  20,  260 

Goodyear  v.  Rumbaugh  120 

Gordon  v.  Uix  265 


xliv 


TABLE   OF   CASES. 


Section 

Section 

Gordon  v.  Gilfoil 

392 

Griffiths  V.  Teetgen 

261 

V.  Gordon 

281 

Grigsby  v.  Breckenridge 

208 

V.  Haywood 

94 

Grindell  v.  Godmond 

61 

V.  Potter 

241 

Griner  v.  Butler 

95 

Gore  V.  Carl 

150 

Grinnell  v.  Wells 

258,  2G0, 

261 

V.  Gibson 

18 

Grist  V.  Forehand 

829 

V.  Knight 

132 

Gronfier  v.  Puymirol 

308 

Gorman  v.  State 

44,  244 

Gross  V.  Reddy 

119 

Gornali's  Case 

306 

Grove  v.  Nevill 

425 

Goshen  v.  Richmond 

18,  31 

Grover  v.  Aloott 

162 

Gosman  v.  Cruger 

58,  140 

Grubb's  Appeal 

229 

Goss  V.  Cahill 

154 

Grunhut  v.  Rosenstein 

237 

Gotts  V.  Clark 

241 

Grute  V.  Locroft 

88 

Gould  V.  Carlton 

81 

Guernsey,  Ex  parte 

352 

361 

V.  Hill 

124 

Guffin  V.  First  Nat.  Bank 

268 

270 

V.  Webster 

89 

Guild  V.  Cranston 

450 

Goulder  v.  Camm 

105 

Guishaber  v.  Hairman 

124 

Goulding  v.  Davidson 

58 

Gulick  V.  Grover 

72 

Govier  v.  Hancock 

60 

Gum  V.  Swearingen 

349 

Grace  ;;.  Hale 

409,  411 

Gunter  v.  Astor 

262 

Graliam  v  Bennett 

226,  228 

V.  Williams 

150 

I'.  Davidson 

322 

Gunther  v.  State 

324 

V.  Dickinson 

92 

Guptil  V.  Home 

73 

V.  Houghtalin 

290 

Gurley  v.  Gurley 

205 

V.  Londonderry 

208 

Guthrie  v.  Morris 

414 

Grain  v.  Sliipman 

190 

Guttman  v.  Scannell 

16f. 

Grand  Rapids  R.  v.  Showers 

260 

Guy  f.  Du  Uprey 

351 

Grant  v.  Green 

43,44 

Gujnn  V.  McCauley 

255 

V.  Whitaker 

316 

Gwaltney  v.  Cannon 

337 

Grantman  v.  Thrall 

450 

Gwin  V.  Vanzant 

317 

Grapengether  v.  Fejervary 

143 

Gravett  v.  Malone 

388 

Gray  v.  Crook 

112 

V.  Durland 

261 

H. 

V.  Fox 

353 

V.  Otis 

72 

H.  V.  P. 

19 

v.  Thacker 

57,  75 

Haase  v.  Roerschild 

238 

Green,  Ex  parte 

240 

Haden  v.  Ivey 

126 

V.  Green 

446 

Hagar  v.  Hagar 

270 

V.  Grcenbank 

424 

Haig  V.  Swiney 

106 

V.  Hudson  R.  R.  Co. 

78 

Hailey  v.  Bond 

388 

V.  Johnson 

370 

V.  Boyd 

376 

V.  Kew  River  Co. 

478 

Haine  v.  Tarrant 

414 

V.  Pallas 

164 

Haines  v.  Haines 

119 

,270 

V.  State 

13 

V.  Oatman 

450 

Greenfield  Bank  v.  Crafts 

266 

Hair  v.  Hair 

38 

Greening  v.  Fox 

354 

Hale  V.  Christy 

150 

Greenly  v.  Daniels 

366 

V.  Plummer 

188 

Greenwell  v.  Greenwell 

238 

Haley  v.  Bannister 

239 

Greenwood  i'.  Greenwood 

261 

Hall  V.  Carmichael 

181 

Greer  v.  Greer 

1S2 

V.  Cone 

388 

Gregg  I'.  Gregg 

372,  373 

V.  Creswell 

120 

Gregor}'  v.  Winston 

181 

V.  Eaton 

57 

Gridley  v.  Watson 

188 

I'.  Gerrish 

435 

Griffin  v.  Banks 

217 

V.  Hall 

85,  268 

,340 

V.  Reynolds 

75 

V.  Hardy 

93 

Griffis  V.  Younger 

440,  442 

V.  Hollander 

258,  260 

,486 

Griffith  )-•.  Bird 

374 

V.  Jones 

322 

,  439 

V.  Griffith 

112,  124 

i\  Lay 

304 

V.  Parks 

867 

V.  Simmons 

439 

V.  Schwenderman 

405 

V.  Storer 

305 

TABLE   OF   CASES. 


xlv 


S€ 

ction 

Section 

Hall  V.  Weir 

61 

Harring  v.  Coles 

238 

Hallenbeck  i'.  Berkshire  R.  R 

Co 

78 

Harrington  v.  Barfield 

277 

Ham  V.  Ham 

301 

Harris  v.  Butler 

261 

Hamaker  v.  Blanchard 

488 

V.  Carstarphen 

389 

V.  Hamaker 

18 

;;.  Currier 

269 

Hamilton  v.  Bisliop             112, 

123 

,  124 

V.  Harbeson 

124 

V.  Douglas 

168 

V.  Harris 

347 

V.  Hamilton 

27 

,  191 

V.  Harrison 

324 

V.  Hector 

218 

V.  Hicks 

16 

V.  Moore 

316 

V,  Lee 

61 

V.  Probate  Court 

307 

v.  Morris 

66 

Hamley  v.  Gilbert 

238 

V.  Mott 

133 

Hamlin  v.  Atkinson 

388 

V.  Nicholas 

491 

V.  Jones 

92 

V.  Separks 

472 

V.  Stevenson 

391 

V.  Wall 

433 

Hammer  v.  Pierce 

259 

V.  Wilhams 

150 

Hammersley  v.  De  Biel      175, 

177 

179 

Harrison  v.  Adcock 

440 

Hammond  v.  Corbett 

254 

V.  Bradley 

384 

Hammer  v.  Mason 

367 

V.  Cage 

172 

Hammett's  Appeal 

385 

V.  Collins 

461 

Hampden,  Case  of 

288 

V.  Fane 

411,  412,  413 

V.  Troy 

267  a 

V.  State 

14,  16 

Hampstead  v.  Plaistow 

27 

V.  Trader 

57 

Hampton,  Case  of 

348 

Harriss  v.  Mabry 

491 

V.  State 

53 

Harrod  v.  Harrod 

18 

Hancock  v.  Merrick 

66 

237 

Harshaw  v.  Merryman 

64 

V.  Peaty 

18 

Harshberger  v.  Alger 

136,  144,  218 

Hancocks  v.  Lablache 

159 

Hart,  In  re 

299 

Hands  v.  Slaney 

394 

411 

V.  Gray 

317 

Handy  v.  Foley 

75 

V.  Grigsby 

145 

Hanks  v.  Deal 

431 

V.  Hart 

269 

Hannen  v.  Ewalt 

850 

Harten  v.  Gibson 

281 

Hanson  v.  Millett 

116 

Hartfield  v.  Roper 

258,  429 

Hantz  V.  Sealy 

27 

Hartford  v.  Morris 

23 

Harbman  v.  Kendall 

447 

Hartley  v.  Cummings 

460,  469 

Hardenburgh  v.  Lakin 

94 

V.  Hurle 

105 

Hardie  v.  Grant 

66 

V.  Tribber 

281 

Hardin  v.  Helton 

318 

V.  Wharton 

433 

Harding  v.  Harding 

249 

Hartness  v.  Thompson 

402 

V.  Earned              347,  350, 

353 

360 

Harttman  v.  Tegart 

66 

V.  Weld 

303 

Hartwell  v.  Rice 

272 

Hardinge,  Goods  of 

86 

Harvard  College  v.  Head 

221 

Hardvvick  v.  Paulet 

269 

Harvey,  Re 

136 

Hardy  v.  Waters                  402, 

404 

406 

V.  Ashley 

399,  402 

Harg  V.  Vaugh 

287 

V.  Hall 

394 

Hargrave  v.  Hargrave 

225 

V.  Harvey 

103,  376 

Hargrove  v.  Webb 

337 

V.  Lane 

249 

Harkins  v.  Sugar  Refinery 

492 

V.  Norton 

64 

Harland's  Accounts,  In  re 

375 

Harwood  v.  Lowell 

78 

Case 

238 

Hasheagan  v.  Specker 

143 

Harlow  v.  Humiston 

490 

Haskins  v.  Royster 

487 

Harmer  v.  Killing 

445 

Haskit  V.  Elliott 

155 

Harnden  v.  Gould 

166 

Hassard  v.  Rowe 

351 

Harner  v.  Dipple 

404 

Hastings  v.  DoUarhide 

406,  435 

Harney  v.  Owen 

443 

Haswell  v.  Hill 

118 

Harover  v.  Cornelius 

462 

Hatch  i>.  Gray 

187 

Harper  v.  Gilbert 

457 

V.  Hatch 

387,  888. 

V.  Lemon 

241 

Hatcher  v.  Cntts 

457 

V.  Luffkin 

261 

Hathaway  i^.  Bennett 

458 

Harrall,  Re 

208 

llauenstein  v.  Kull 

343 

Harrer  v.  Wallner 

96 

Hause  v.  Gilger 

120 

xlvi 


TABLE   OF   CASES. 


Section 

Hauser  v.  Sain  273 

Havens  v.  Patterson  3Go 

Hawbecker  v.  Ilawbecker  '22(J 

Hawes  v.  Knowles  490 

llawkes  v.  llubback  105,  107 

Hawkins  v.  Craig  82 

V.  Jones  277 

V.  Providence  R.  81,  82,  208 

V.  Watts  238 

Hawkins'  Appeal  888 

Hawkswortli  v.  Hawksworth  235 

Hawley  v.  Bradford  95 

Haws  V.  Clark  3U1 

Hay  V.  Walker  472 

Hayden  v.  Smith ville,  &c.  Co.  473,  402 

V.  Stone  374 

Hayes  v.  Watts  30 

Hay  good  v.  Harris  128 

V.  McKoon  377 

Haymond  v.  Jones  173 

V.  Lee  180 

Haynes'  Adm'r  v.  Waggoner  237 

Hays  V.  Henry  205 

V.  McConnell  273 

V.  Seward  254,  2G9 

Hayward  v.  Ellis  374,  3SG 

Hazard,  In  re  303 

Hazelbaker  v.  Goodfellow  114,  154 

Head  v.  Briscoe  76 

V.  Halford  186 

V.  Head  225 

Headen  v.  Kosher  131 

Headman  v.  Rose  39 

Heard,  Ex  parte  329 

V.  Daniel  348 

V.  Stamford  56,  197 

Hearst  v.  Sybert  259 

Heath  r.  ]\lahoney  425 

V.  West  438,  440 

Heathey  v.  Thomas  137 

Heathman  v.  Hall  124 

Hebiirn  v.  Warner  146 

Heck  V.  Clippenger  124 

Hedgeley  v.  Holt  473 

Hedtjes  v.  Tasg  201 

Heffer  v.  Heffer  24 

Heirn  v.  McCanghnn  77 

Helms  V.  Chadboiirne  451 

Helps  V.  Clayton  411 

Helyear  v.  Hawke  489 

Hem  in  en  way  v.  Towner  225 

Hempliill  v.  Lewis  373 

Hemstead  v.  Gas  Light  Co.  79 

Henderson  v.  Coover  369 

Hendry  v.  Hurst  374 

Henncssy  v.  Stewart  252  a 

Henning  v.  Harrison  98 

Henry  v.  Henry  179 

V.  Pennington  384 

V.  Root  426,  434,  441,  440 

Henson  v.  Watts  218,  250 


Section 

Herbert  v.  Torball  397 

Hurdmann  v.  Pace  94 

Hcrndon  v.  Lancaster  301 

lierrick  v.  Fritcher  252  a 

Herring  v.  Goodson  303 

r.  Wickham  174 

Herrington  v.  Robertson  198 

Herschfeldt  v.  George  188 

Hervey  v.  Mosele3'  260 

Hosketh  v.  Gowing  279 

Hetrick  v.  Hetrick  197 

Hewson,  In  re  208 

He3-sliam  v.  Heysham  238 

Heyward  v.  Cutlibert  239,  245 

Hey  wood  v.  Brooks  269 

Hiatt  V.  Williams  270,  274 

Hickman's  Appeal  388 

Hicrstand  v.  Kuns  893 

Higgins  V.  McClure  388 

High  V.  Snedicor  388 

Hiiihtower  v.  INIaull  343 

Hiibish  V.  Hilbish  269 

Hill  I'.  Anderson  407,  437 

V.  Bugg  155 

11.  Campbell  470 

V.  Caverly  482 

V.  Chambers  114,  116,  120 

V.  Childress  234 

V.  Crook  281 

V.  Edmonds  88 

V.  Eldridge  450 

V.  Filkin  235 

V.  Foley  82 

V.  Good  16 

V.  Goodrich  197 

I'.  Gust  492 

V.  Hill  235,  249,  290,  333 

V.  Johnston  384 

V.  Mclntire  383 

V.  Slorey  461 

V.  Saunders  89,  90 

V.  Sewald  72 

V.  State  58 

V.  West  95 

Hillebrands  v.  Nibbelink  270 

Hillegass  v.  Hillegass  451 

Hills  V.  Hobert  260 

Hillsborough  v.  Deering  280 

Hillyer  v.  liennett  446 

Hincks  v.  Allen  178 

Hinde's  Lessee  v.  Longworth  270 

Hindley  v.  Westmeath  66,  68 

Hinds,  Estate  of  84 

Hinely  v.  Margaritz  445 

nines  v.  JluUins  308,  343 

V.  Potts  453 

V.  State  329 

Hinney  r.  Phillips  155 

Hinton  r.  Hudson  69 

Ilitchins  v.  Eardley  225 

Hite  V.  Hite  344 


TABLE   OF   CASES. 


xlvii 


Sec-lion 

Section 

Hitner's  Appeal 

217 

Hood  V.  Bridport 

351 

Plix  V.  Gosling 

143 

Hook  V.  Tratt 

279 

Hoare  v.  Harris 

343 

Hooker  v.  Bancroft 

370 

Hoben  r.  Biirlinsiton,  &c. 

-R.  R.  Co.  492 

Hooks  V.  Lee 

177 

Hobensack  v.  Ilallman 

118 

V.  I'erkins 

457 

Hobson  V.  Fullerton 

261 

V.  Smith 

449 

Hocker  v.  Woods 

322,  377 

Hooper  v.  Eyies 

347 

Hodgden  v.  Hodgden 

10!) 

V.  Haskell 

77 

Hodges,  In  re 

339 

V.  Hooper 

311,  388 

V.  Cobb 

154 

j;.  Howell 

202 

V.  Hunt 

437 

Hoover  v.  Heim 

259,  262 

Hodgkins  v.  Rockport 

235 

Hope  V.  Carnegie 

76 

Hodgkinson  v.  Fletcher 

68 

V.  Hope 

216,  303 

Hodgson  V.  Macy 

272 

Hopkins,  Ex  parte 

245,  240,  250 

V.  Scarlett 

476 

V.  Carey 

82,  118,  119 

V.  Williamson 

199 

V.  Myall 

138 

Hodsoll  V.  Stallebrass 

486 

V.  Virgin 

429 

Hodson  r.  Davis 

143 

Hopper  v.  McWhorter 

82 

Hoffman  v.  Gordon 

482 

Horner  v.  Wiieehvright 

134,  138 

Hogan  V.  Hogan 

191 

Hornsby  v.  Lee 

89 

Hoggan  V.  Cragie 

27 

Horsford,  Re 

303 

Holmes  v.  Mather 

490 

Hort  V.  Sorrell 

125 

Hoker  )'.  Hoggs 

192 

Horton  v.  Byles 

77 

Hoit  r.  UndeVhill 

435.  4.37,  445 

i\  Horton 

377 

Holbrook  V.  Brooks 

347,  385 

V.  McCoy 

357,  363 

Holcomb  V.  Meadville  Savings  Bank 

V.  McJIiirtry 

462 

IIG 

Horwood  V.  Heffer 

66 

Holcombe  v.  Holcombe 

375 

Hosford,  Re 

303 

Holden  v.  Cope 

08 

Hoskins  v.  Miller 

82 

V.  Scanlin 

803 

V.  Wilson 

348 

Holland,  Ex  parte 

159 

Hoste  V.  Pratt 

238 

V.  State 

372 

Hough  V.  Texas  R. 

492 

Holley  V.  Chamberlain 

306 

Houghton  V.  Houghton 

271 

Holliday  v.  Gamble 

457 

Houliston  V.  Smytii 

48,66 

V.  McMillan 

114 

House  V.  House 

269 

HoUifield  v.  Wilkinson 

189 

Houser  v.  Reynolds 

439 

Hoilingsworth  v.  Swedenborg  252,  254, 

Houston  IK  Cooper 

408 

267a,  268 

Houston  R.  V.  Miller 

262 

Hollingsworth's  Appeal 

300 

Hovey  v.  Harmon 

303,  311,  317 

Hollis  ('.  Francois 

190 

Howard  v.  Baillie 

489 

Holloway  v.  Headington 

189 

V.  Braithwaite 

489 

V.  Millard 

186 

V.  Daly 

471,  472 

Plolly  V.  Flournoy 

119 

V.  Digby 

160 

Holn)es  i\  Blogg 

408,  437,  441 

I'.  Menifee 

112,  208 

V.  Field 

300,  311 

?.'.  Stephens 

169 

V.  Holmes  26,  27,  29, 

166,  198,  222 

V.  Whetstone 

66 

V.  Onion 

478 

Howarth,  In  re 

356 

".  Penney 

186 

Howd  V.  Miss.  Central  R. 

492 

V.  Thorpe 

94 

Howe  >\  Newmareh 

490 

Holmes's  Appeal 

357 

r.  Pcabody 

368 

Holt  V.  Brien 

64,66 

Howe's  Estate 

26 

V.  Holt 

407 

Howell  V.  Batt 

482 

V.  Sindrey 

281 

V.  Cobb 

377 

V.  Ward 

402 

v.  Maine 

83 

Holtzman  v.  Castloman 

238 

i\  Williamson 

349 

Holyoke  v.  Clark 

860 

Howells  V.  Bandore  Steel  Co.             492 

V.  Haskins 

334 

Howett  V.  Alexander 

450 

Homer  v.  Thvving 

424 

Howlett  V.  Haswell 

424 

ITomcEopathic  Life  Ins.  Cc 

.  V.  Mar- 

Howry  v.  Callowey 

457 

siiall 

150 

Hoxie  V.  Lincoln 

443 

Honnett  v.  Honnett 

23 

Hoyle  V.  Stowe 

438,  440 

xlviii 


TABLE   OF    CASES. 


Hoyt  r.  Casey 

V.  Hellen 

I'.  Sprague 

V.  Swar 

V.  White 
TToyt's  Case 
Hubbard,  Re 

V.  Cummings 
Hubbs  V.  Rath 
Huchting  v.  Engel 
Hudson  V.  Heliries 

V.  Hills 

V.  Jones 

V.  Lutz 

V.  Word  en 
Huey's  Appeal 
Huff  V.  Price 

V.  Walker 
Huffer's  Appeal 
Huffman  v.  Rout 
Huger  V.  Huger 
Huglies  V.  Gallans 

V.  Hughes 

V.  Knowlton 

V.  JMcFie 

V.  RingstafF 

V.  Science 

V.  Seller 

V.  Watson 

V.  Wells 
Hughes's  Appeal 
Huguenin  v.  Baseley 
Hull  V.  Sullivan 
Hulme  V.  Tenant 
Hultz  V.  Gibbs 
Hume  V.  Hume 
Humes  v.  Scruggs 
Humphery  i'.  Richards 
Humphrey  v.  Buisson 

V.  Douglass 

V.  Humphrey 
Humphreys  ?'.  Royce 
Humphries  v.  Harrison 
Hunsucker  v.  Elmore 
Hunt,  Ex  parte 

V.  Booth 

V.  De  Blaquiere 

V.  Johnson 

V.  Massey 

V.  Peake 

V.  State 

V.  Thompson 

V.  White 

V.  Winfield 
Hunt's  Appeal 
Hunter  v.  Atkins 

V.  Bryant 

V.  Dash  wood 

V.  Duvall 

V.  Lawrence 

V.  Littercr 


Section 
413 
290 
329,  330,  349 
404 
162 
299 
303 
441 
87 
423 
348 
298 
405 
273 
457 
393 
72,  90 
350 
375 
457 
357 
425 
239 
281 
428 
373 
289 
451 
440 
140 
350 
389 
155 

105,  134 

66 

380 

119 

104,  132 
352 

395,  423 

373 

57 

92,  121 

457 

265 

112,  124 
61 
189 
433 
402 
367 

221,  413 

376 

78 

26 

388 

173,  176 
351 
148 
349 
473 


Section 

Hunter  v.  McHae  333 

Huntley  v.  Whitner  68,  148 

Iliintoon  V.  Ilazelton  260 

Hurdle  V.  Leath  353 

Husband  v.  Husband  237 

Hussee  v.  Roundtree  273,  337,  413 

Huston  V.  Cantrill  188 

V.  Cone  ,                    198 

Hutchcraft  v.  Shrout  867 

Hutclieson  v.  Peck  41 

Hutcliins  c.  Colby  116,  152 

V.  Dresser  343 

V.  Johnson  343 

V.  Kimiiiell  26,  29 

Hutchinson  v.  Hutchinson  337 

V.  York,  &c.  R.  R.  Co.                492 

Huth  V.  Catondolct  R.  435,  437 

llutson  V.  Townsend  249 

Hutton  V.  Dney  191 

v.  Harper  29 

V.  Hutton  217 

V.  Williams  314,  372,  374 

Huyler  r.  Atwood  148,150 

Huzzey  r.  Field  490 

Hyatt  c.  Adams  77,  78 

Hyde  v.  Hyde  21 

V.  Johnson  433 

V.  Stone  82,  285 

V.  Warren  95 

Hylton  V.  Hylton  387,  388 

Hyman  v.  Cain  413 


I. 


Ihl  r.  Street  R.  259 

Ihler,  Goods  of  204 

lUidge  V.  Goodwin  490 

Illinois  C.  R.  R.  Co.  v.  Baches  491 

Illinois,  &e.  R.  R.  Co.  v.  Grable  89 

Illinois  Land  Co.  v.  Bonner  225,  402, 
405,  437 
Indianapolis  Chair  Co.  v.  Wilcox  407, 
409,  442 
Ingersoll  r.  IngersoU  451 

Ingham  v.  Bicl^erdike  317 

Inglefield  v.  Coghlan  105 

Ingram  v.  Soutten  232 

Inman  v.  Inman  425,  439 

Insole,  He  222 

Insurance  Co.  v.  Bangs  448 

V.  Nelson  193 

Irvine  v.  Irvine  403,  435,  439 

Irwin  V.  Dearman  261,  262 

V.  Irwin  451 

Isaacs  V.  Taylor  305,  317,  321 

Ishan  V.  Gibbons  230 

Ivey  !'.  Ingram  452 

Izard  V.  Izard  175 

Izod  V.  Lamb  104,  111 


TABLE   OF   CASES. 


xlix 


J. 

Section 

Section 

Jeston  V.  Key 

182 

Jackson  v.  Bridge 

473 

Jewell  V.  Grand  Trunk  R 

492 

V.  B urchin 

439,  440 

r.  Jewell 

28 

V.  Carpenter 

440 

Jevvett,  Ex  parte 

356 

V.  Combs 

255 

Jewsbury  ?•.  Newbold 

63,  64,  71 

V.  De  Walts 

290 

Jodrc'll  V.  Jodrell 

110,  160 

V.  Gilchrist 

04 

Joel  V.  Morrison 

490 

V.  Hankey 

334 

Jolin  V.  Bradbury 

325 

V.  Ilobliouse 

110 

Johnes  v.  Lockhart 

105 

V.  Hubbard 

113 

Joliiis  V.  Emmert 

278,  332 

V.  Innes 

209 

V.  Emmett 

282 

V.  Jackson            155 

221,  272,  351 

V.  Johns 

23 

V.  Kirby 

75 

Johnson  v.  Avery 

362 

V.  McAliley 

112,  123 

V.  Ballard 

265 

V.  McConnell 

88 

V.  Barber 

482 

V.  Peek 

270 

V.  Blenkensopp 

•  458 

V.  Sears 

342 

V.  Bruner 

492 

V.  Suffern 

89 

V.  Burford 

7 

V.  Todd 

439 

V.  Carter 

350 

V.  Town 

187 

V.  Chandler 

377 

V.  Vanderheyden 

58,95 

V.  Dodd 

457 

V.  Winne 

2:5,26 

V.  Gallagher        134, 

135,  143,  158, 

Jacobs  V.  Amyatt 

105 

163,  165 

V.  Hesler 

155 

I'.  Gibson 

267  a.  268 

Jaeox  V.  Jacox 

270,  326 

V.  Johnson       37,  108 

118,  324,  388 

Jacquot  V.  Bourra 

462 

V.  Kirkwood 

219 

Jaffray  v.  Fretain 

402 

r.  Lines 

413 

James  v.  Taylor 

164 

V.  Lusk 

193 

Jamison  v.  Cosby 

367,  377 

V.  McCullough 

367 

Janes  v.  Clegliorn 

305 

V.  Payne 

89 

Jaques   v.    Methodist    E 

[)iscopal 

V.  Pye 

424,  425 

Church           132, 

136,  138,  139 

V.  Rockwell 

402 

V.  Sax 

408 

V.  Runyan 

120,  152 

Jarman  v.  Lucas 

451 

V.  Silsbee 

268 

V.  Wooloton 

163 

V.  Snow 

155 

Jarrett  v.  State 

298,  306,  376 

V.  State 

•244,  398 

Jassoy  V.  Delius 

162,  165 

V.  Stone 

266 

JefFord  v.  Ringgold 

402 

V.  Terry 

251 

Jeffrey  v.  Guy 

90 

V.  Vail 

154 

Jeffreys  v.  Vanteswartswc 

rth            334 

Johnson's  Appeal 

232 

Jenison  v.  Graves 

267  a,  270 

Johnston  i'.  Coleman 

338 

Jenkins  v.  Flinn 

118,  165,  168 

V.  Furnier 

439 

V.  Jenkins 

403 

I'.  Gill 

188 

V.  Kemis 

174 

V.  Johnston 

84,  190 

V.  Mitchell 

272 

V.  Jones 

94 

V.  Tucker 

199 

V.  Sumner              63, 

64,  65,  66,  69 

V.  Walter 

352 

Johnston's  Case 

322 

Jenks  V  Langdon 

213 

Johnstone  v.  Beattie 

299 

Jenkyn  v.  Vaughan 

186 

V.  Lumb 

107 

Jenne  v.  Marble 

191 

Jollifle  V.  Higgins 

343 

Jenner  v.  Turner 

32 

Jolly  V.  Rees 

63 

Jenness  v.  Emerson 

237,252  a 

Jones,  Ex  parte 

53 

V.  Robinson 

203 

Re 

186,  190,  278 

Jenney  v.  Gray 

89 

V.  Mtna,  Ins.  Co. 

112 

Jennings  v.  Davis 

189 

V.  Beverly 

382,  386 

V.  Kee 

348 

V.  Billstein 

363 

V.  Looks 

347 

V.  Blanton 

367 

V.  Lyons 

458,  474 

V.  Brewer 

344,  350,  418 

V.  Rundall 

424 

I'.  Buckley 

252 

Jervois  v.  Silk 

238 

V.  Butler 

399,  437 

Jervoise  v.  Jervoise 

208 

V.  Carter 

90 

TABLE   OF   CASES. 


Section 

Section 

Jones  V.  Cleghorn 

232 

Keith  V.  Miles 

374 

I'.  Clifton 

187 

,  lUU 

Kekewicli  c.  Manning 

189 

V.  Crosthwaite 

143 

Kelchner  ( .  Forney 

388 

V.  Fellows 

372 

Keller  v.  Mayer 

154 

V.  Foxall 

3-34 

r.  Phillips 

63,  65 

V.  Hart 

490 

Kelley  v.  Case 

190 

i^.  HoUopeter 

350 

V.  Davis 

241 

V.  Jones       7,  32,  352, 

407 

,  433,  452 

Kellogg  r.  Adams 

269 

r.  Littledale 

4»1 

V.  Robinson 

72 

V.  Patterson 

89 

Kelly  V.  Drew 

119,  162 

V.  Perry 

330 

V.  Kelly 

45,46 

V.  Phoenix  Bank 

435 

439 

V.  Owen 

89 

V.  Plummer 

92 

V.  Small 

53 

V.  Reid 

162 

Kemble  v.  Kean 

460 

V.  Sharp 

448 

Kemp  V.  Cook 

407,  426 

I'.  Steele 

449 

V.  Downliam 

68 

V.  Stockett 

235 

238 

Kempe  v.  Pintard 

92 

V.  Tevis 

200 

Kenipson  v.  Ashall 

404 

V.  Waite 

21tJ 

Kenan  v.  Hall 

354 

V.  Ward 

313 

Kendal!  v.  Lawrence 

405 

Jones's  Appeal 

174 

322 

j:  Miller 

347 

Jordan  v.  Clark 

221 

Kendrick  v.  Wilkinson 

367 

V.  Donahue 

343 

Kennaird  r.  Adams 

348 

V.  Foxworth 

472 

Kcnnard  r.  Burton 

202 

V.  Jones 

93 

Kennedy  r.  Doyle 

407 

?".  Norton 

489 

V.  Gaines 

361 

Joyce  V.  McAvoy 

217 

V.  Shea 

261 

Judge  of  Probate  v.  Cook 

377 

r.  Ten  Broeck 

94 

i;.  Hinds 

303 

Kenney  v.  Good 

120 

Judson  V.  Blanchard 

450 

Kenningham  v.  M'Laughlin 

255 

V.  Storer 

451 

Kennison's  Trusts,  In  re 

238 

Junction  Railroad  Co.  v.  Han- 

s 

89 

Kcnniston  r.  Leighton 

361 

Justices  V.  Willis 

376 

Kenny  v.  Udall 
Kenrick  v.  Wood 
Kensington  v.  Dollond 

390 
110 
105 

K. 

Kent  r.  Dunham 
V.  State 

272 
30 

Kane,  Matter  of 

238 

Kenton  Ins.  Co.  v  McClellan 

148 

Kantrowitz  v.  Pratlier 

143 

Ken  worthy  v.  Sawyer 

146 

Karney  v.  Vale 

338 

Kenyon  v.  Farris 

61 

Karr  v.  Karr 

324, 

353 

Keogh  v.  Cathcart 

134 

7\  Parks 

258 

Kernodle  v.  Caldwell 

241 

Kauffelt  I'.  Moderwell 

2 

52  « 

Kerr  v.  Bell 

446 

Kaufman  v.  Whitney 

188 

V.  Forgiie 

429 

Kavanaugh  r.  Janesville 

77.78 

Kerwin  v.  IVIyers 

457 

Kay  V.  Crook 

178, 

180 

r.  Wright 

267  rt 

V.  Whittaker 

91 

Kesner  v.  Trigg 

190 

Kaye,  In  re 

306 

Kessee  v.  May  field 

473 

V.  Crawford 

270 

Kettletas  r.  Gardner            306 

316. 339 

Kaye's  Case 

301, 

305 

Kevan  ?'.  Crawford 

174 

Keane  v.  Boj'cott 

260, 

401, 

402 

r.  Waller 

299,  322 

Kearney  v.  Denn 

225 

Keyes  r.  Keyes 

23 

Keating  v.  Condon 

210 

Keys  V.  Keys 

218 

Keaton  v.  Davis 

241 

Kibbie  v.  Williams 

89 

Kebble,  Ex  parte 

240 

Kidd  V.  Guibar 

372 

Kee  V.  Vasser 

125 

V.  Montague 

114 

Keech  v.  Keech 

38 

Kidwell  V.  Kirkpatrick 

119 

Keeler  v.  Fassett 

255 

V.  State 

313 

Keene  v.  Guier 

318 

Kilcrease  v.  Shelby 

418 

Kehri'.  Smith 

188 

Kilgore  r.  Jordan 

426 

Keister  v.  Howe 

80 

Kiliick,  Ex  parte 

105 

TABLE   OF   CASES. 


Section 

Kimball  v.  Fisk 

808, 

311,3(51 

V.  Keyes 

68 

G9,  237 

V.  Terkins 

353 

Kimmel  v.  Kimmel 

31« 

Kine  v.  Barbour 

408 

King  V.  Bell 

303, 

308,  324 

V.  Fox  well 

37 

V.  Gottschalk 

118 

V.  Hodnett 

278 

V.  Hughes 

315,  372 

V.  Little 

8'J 

V.  Luffe 

22.-) 

V.  Kea 

150 

V.  Rotherfield  Greys 

419 

V.  Seals 

345 

V.  Tiiompson 

77,  1(J1 

Kingman  v.  Perkins 

40(i 

Kinkead,  Re 

109 

Kinnard  v.  Daniel 

177,  180 

Kinnen  v.  Maxwell 

408,  446 

Kinney  v.  Showdy 

402 

Kinnier  v.  Kinnier 

22 

Kinsey  v.  State 

377 

Kintzinger's  Estate 

221 

Kir  by  v.  Kirby 

388 

V.  Taylor 

388 

V  Turner 

322 

Kirk  V.  Paulin 

105 

Kirkman,  Ex  parte 

3G3 

Kirkpatrick  v.  Lockhart 

2G0 

Kirksey  v.  Friend 

114 

Kirwin  v.  Weippert 

136 

Kitchell  V.  Mudgett 

58 

Kitclien  v.  Bedford 

189 

V.  Lee 

408, 409,  446 

Kittredge  v.  Betton 

388 

Klaus  i\  State 

450 

Kleffel  V.  Bullock 

450 

Klein  v.  Jewett 

78 

Kieinert  v.  Ehlers 

225 

Kline  v.  Beall 

446 

V.  Beebe 

285,  437 

r.  Central  Pacific  R. 

R.  Co.       428 

V.  Kline 

181 

^  V.  L'Amoreux 

413 

Kline's  Estate 

181 

Klingman  ik  Holmes 

262 

Klopt'er  V.  Bromme 

262 

Knaggs  V.  Green 

446 

Knapp  V.  Crosby 

451 

V.  Smith 

120 

148,  153 

Knickerbocker  v.  Knickerbocker      361 

Knight  V.  Knight 

44,  108 

V.  Thayer 

150 

V.  Wilcox 

261 

Knothe  v.  Kaiser 

350 

Knott  V.  Cottee 

305 

333,  354 

Knotts  V.  Stearns 

448 

Knowles  v.  Hull 

168 

V.  Knowles 

136,  138 

Knowlton  v.  Bradley 

352 

353,  375 

Section 

Knox  V.  Bushell  61 

V.  Flack  406 

V.  Jordan  143 

t'.  Picket  128 

Knye  v.  Moore  279,  281 

Kolm  V.  Russell  145 

KoUs  V.  De  Lever  150 

Koitenback  v.  Cracraft  133 

Konigmacher's  Appeal  353 

Koontz  V.  Nabb  143 

Kopke  V.  People  21 
Kouskop  V.  Sliontz              166,  167,  168 

Kraft  r.  Wickey  328,  329 

Kraker  v.  Byruin  337,  413 

Kreig  v.  Wells  429 

Kreis  v.  Wells  259 

Kriger  v.  Day  222 

Kuclienbeiser  v.  Beckert  452 

Kulm  V.  Stansfield  155 

Kurtz  r.  Ilibner  269,  270 

Kyle  V.  Barnett  354,  386 


L. 

Lacey,  Ex  parte  -348 

Lacy  V.  Osbaldiston  462 

V.  Williams  S03 

Ladd  V.  Hildebrandt  94 

V.  Lynn  61 

Lady  Chester's  Case  299 

Lady  Teynham  v.  Lennard  305 

Lady  Teynham's  Case  235 

Lahr's  Appeal  188 

Laing  v.  Cuimingham  162 

Lake  i\  Lake  7 

Lamb  V.  Lady  Palk  491 

V.  Milnes  109 

Lamb's  Appeal  354 

Lambe  v.  Fames  281 

Laniburn  (;.  Cruden  473 

Lammoth  r.  Maulsby  457 

Lamphier  v.  State  51 

Lampliir  v.  Creed  82,  83 

Lampnian  v.  Hammond  261 

Lancaster,  In  re  219 

Lane  v.  Cotton  482 

V.  Hardwicke  452 

r.  Ironmonger  63,  64 

V.  McKeen  94 

V.  Phillips  473 

V.  'raylor  348,  351 

Lang  V.  Pettus  304 

Lange  v.  Werk  460 

Langford  v.  Frey  404 

Langham  v.  Nenny  83 

f.  State  260 

Lanier  v.  GrifHn  388 

Lannoy  v.  Ducliess  of  Athol        51,  239 

V.  Duke  of  Athol  184 

Lansier  v.  Ross  125 


lii 


TABLE   OF   CASES. 


Section 

Lantz  V.  Frey  273 

Lapsley  v.  Grierson  227,  228 

Larimer  v.  Kelley  162 

Larkin  v.  Mann  451 

Lashbrook  v.  Patten  203 

Lassenee  v.  Tierney  175 

Latouche  v.  Latouche  134 

Laugher  v.  Pointer  490 

Laughlin  v.  Eaton  77 

Lavender  v.  Blackstone  188 

Lavie  v.  Phillips  163 

Law  V.  Wilkin  241 

Lawes  v.  Lumpkin  88 

Lawford  v.  Davies  30 

Lawrence  v.  Kidder  460 

V.  Lawrence  46 

V.  M'Arter  406 

Lawson  v.  Lovejoy  435 

V.  Perry  473 

V.  Shotwell  221 

Lawson's  Appeal  272 

Leach  v.  Duvall  181 

V.  Noyes  94 

V.  Prebster  210 

V.  Rogers  475 

Leadbitter  v.  Farrow  481 

Leavel  v.  Bettis  305,  318 

Leavitt  v.  Leavitt  23,  24,  187 

Leaycraft  v.  Hedden  136 

Lebanon  v.  Griffin  265 

Lecone  v.  Sheires  287 

Ledlie  v.  Vrooman  143 

Lee  V.  Brown  389 

V.  Carter  473 

V.  Hodges  201 

p.  Ice  308,  317 

V.  Lanahan  58,  114 

V.  Lee  353 

V.  West  487 

Lee's  Appeal  301 

Lees  V.  Whitcomb  477 

Lefever  v.  Lefever  316,  319 

Lefevre  v.  Lara  way  348 

Lefevres  v.  Murdock  222 

Lefils  V.  Sugg  411 

Legard  v.  Johnson  216 

Legeyt  v.  O'Brien  18 

Legg  V.  Goldwire  1H2 

V.  Legg  82,  221 

Lehigh  Valley  Co.  r.  Jones  492 

Lehman  v.  Brooklyn  429 

Leidig  v.  Coover's  Ex'rs  269 

Leigh  V.  BjTon  281 

Leitensdorfer  v.  Hempstead  440 

Leland  v.  Collver  168 

V.  Whitaker  120 

Le  Loir  v.  Bristow  473 

Lemley  v.  Atwood  384 

Lemon  r.  Hansbarger  382 

Lempricre  v.  Lange  425 

Lenderman  v.  Talley  83 


Section 

Lennox  v.  Eldred 

59 

Leonard  v.  Barnum 

348 

V.  Leonard 

308 

V.  Putnam 

329 

Leslie  v.  Fitzpatrick 

403 

Lethem  ».  Hall 

306,  334 

Letts  V.  Brooks 

252 

Levering  v.  Heighe 

186 

V.  Levering 

399 

Levett  V.  Penrise 

64 

Lewis  V.  Allred 

373,  388 

V.  Ames 

26 

V.  Babcock 

77 

V.  Edwards 

337 

V.  Eutsler 

277 

V.  Harris 

138, 145,  155 

V.  Johns 

154 

V.  Littlefield 

424 

V.  Mathews 

105 

V.  Peachey 

457 

V.  Sawyer 

482 

Lewson  v.  Copeland 

352 

Libby  v.  Chase 

150 

Libhart  v.  Wood 

462 

Lichtenbergcr  v.  Graham 

120,  155 

Liddlow  V.  Wilmot 

66,68 

Lightly  V.  Clouston 

487 

Lights'  Appeal 

354 

Lilley  v.  Elwin 

458,  462,  472 

Lincoln  v.  Alexander 

321,  330 

Lind  V.  SuUestadt            254,  267  a.  268 

Lindley  v.  Smith 

94 

Lindo  V.  Belisario 

13 

Lindsay  v.  Lindsay 

388 

Lindsell  v.  Thacker 

105 

Line  v.  Blizzard 

155 

Lingen  v.  Lingen 

226,  231 

Linker  v.  Linker 

190 

Linner  v.  Crouse 

450 

Linton  v.  Walker 

382 

Lipe  V.  Eisenlerd 

269 

Lippincott  v.  Mitchell 

117,  152 

Lishey  v.  Lishey 

155 

Litchfield  v.  Cad  worth 

89 

Little  V.  Duncan 

404,  435 

Little  Miami  R.  R.  Co.  v. 

Stevens    492 

V.  Wetmore 

491 

Ljvermore  i-.  Bemis 

367 

Liverpool  Adelphi  Loan 

Associa- 

tion  I'.  Fairhurst  76 

Livesey  v.  Harding  339 

Livingston,  In  re  412,  453 

V.  Livingston  175,  190 

Llovd,  In  re  278 

'  V.  Fulton  179,  188 

V.  Pughe  86 

Locke  V.  Smith  413 

Lockhart  v.  Phillips  384 

Lockwood  V.  Fenton  304 

V.  Thomas  68 

Lockyer  v.  Sinclair  26 


TABLE   OF   CASES. 


Hii 


Section 

Loftris's  Case  88 

Logan  V.  Fairlee  306 

V.  Goodall  176 

V.  Hall  155 

V.  Thrift  95 

V.  Wienholt  177 

Lomax  v.  Smyth  152 

London  Bank  of  Australia  v.  Lem- 

priere  135 
London  &  Northwestern  11.  R.  Co. 

V.  M'Michael  407 

Londonderry  v.  Chester  29 

Long  V.  Hewitt  232 

V.  Kinney  73 

V.  Morrison  77,  78 

V.  Norcora  338 

Longley  v.  Hall  375 

Longraeid  v.  Holliday  77 

Longmire  v.  Pilkington  343 

Longstreet  v.  Tilton  343 

Loomis  V.  Cline  431 

V.  Newhall  237,  241 

Lord  V.  Hough  305,  333 

V.  Parker  169 

V.  Poor  268 

Loring  v.  Alline  377 

V.  Bacon  367 

Loud  V.  Loud  217 

Louisville  &  Nashville  R.  R.  Co.  v. 

Collins  492 

Love  V.  Graham  183 

V.  Logan  352 

V.  Watkins  150 

Lovelace  v.  Smith  351 

Lovell  V.  Minot  353 

V.  Newton  162,  166 

Lover  v.  Lover  86 

Lovett  V.  Salem,  &c.  R.  R.  Co.  429 

Low  V.  Purdy  347 

Lowe  V.  Griffith  412 

i;.  Sinklear  443 

Lowell  V.  Boston  &  Lowell  R.  R. 

Co.  491 

Lower  Augusta  v.  Salinsgrove  278 

Lowndes  v.  Lowndes  281 

Lowry  v.  Button  251 

V.  Drake  446 

V.  State  354,  367 

Loyd  V.  Malone  361,  385 

Lucas  V.  Brooks  53 

V.  Rickerich  89 

Lufkin  V.  Mayall  443 

Luhrs  V.  Eimer  39 

Lumb  V.  Milnes  135 
Lumley  v.  Gye                    260,  252,  487 

Lunay  v.  Vantyne  232 

Lunday  v.  Thomas  343 

Lushington  v.  Sewell  107 

Lygo  V.  Newbold  429 

Lyn  V.  Ashton  137 

Lynch  v.  Kirby  361 


Section 


Lynch  v.  Lynch 

36 

V.  Nurdin 

A-'.'d 

V.  Rotan 

372,  377 

Lynde  v.  Budd 

438,  441 

V.  McGregor 

202 

Lyndon  v.  Lyndon 

23,24 

Lyne,  Succession  of 

392 

Lyon  V.  Boiling 

267  a,  268 

r.  George 

458 

V.  Green  Bay  R. 

118,  155 

V.  Vanatta 

361 

Lyons  v.  Blenkin 

246 

V.  Martin 

491 

Lytle's  Appeal 

145 

M. 


Maccord  v.  Osborne  433 

Mack  V.  Branuuer  351,  352 

V.  State  204 

MacKay  v.  Commercial  Bank  490 

Mackin  v.  Morse  354 

Mackinley  v.  McGregor  72,  164 

Maclay  v.  Love  114,  143 

Maclin  v.  Smith  338 

Macready  v.  Wilcox  290,  333 

MacVey  v.  McVey  363 

Maddox  v.  State  457 

Madison  County  v.  Johnston  369 

Madox  V.  Nowlan  178 

Magee  v.  Holland  252  a 

V.  Magee  262 

Magniac  v.  Thompson  173,  188 

Magruder  v.  Darnall  59,  326,  375 

V.  Goodwyn  382,  388 

V.  Peter  350 

Maguinay  v.  Saudek  261 

Maguire  v.  Maguire  13,  143 

Mahoney  v.  McGee  361 

Maitland  v.  Backhouse  389 

Major  V.  Holmes  146 

V.  Lansley  133 

V.  Svmmes  143,  150 

Male  V.  Roberts  393 

Mallan  v.  May  460 

Mallinson  v.  Mallinson  249,  250 

Mallory  v.  Vanderlieyden  67 

Maltby  v.  Harwood  457,  473 

Manby  v.  Scott  48,  63,  66,  424 

Manchester  v.  Smith  268 

Mangam  v.  Brooklyn  R.  R.  Co.        429 

Mangan  v.  Atterton  428 

Manley  v.  Field  261 

Manly  v.  Downing  143 

Mann  v.  McDonald  348 

V.  State  63 

Manning  v.  Baker  372,  374 

V.  Chambers  186 

V.  Johnson  446 

V.  Manning  372,  382 


llY 

TABLE   or    CASES. 

Section 

Section 

Manson  v.  Felton 

321 

Mathews  v.  Sheldon 

155 

Manvell  u.  Tliomson 

2til 

V.  Wade 

308 

Manwaring  v.  Sands 

66 

Matlock  V.  Rice 

372 

Maples  V.  Maples 

451 

Mattiiewman's  Case 

135 

V.  Wiglitman 

404 

Mattliews  v.  Brise 

352 

Marcelliti,  Matter  of 

305 

V.  Copeland 

89,  114 

March  v.  Bennett 

347 

V.  Fiestel 

75 

V.  Berrier 

357 

Matthewson  r.  Perry 

254 

Marchioness  of  Annandale 

V.  Har 

Mattingly  v.  Nye 

187 

ris 

270 

Mattocks  V.  Stearns 

89 

Margetts  v.  Barringer 

105 

Mattoon  v.  Cowing              367 

369,  373 

Marheineke  v.  Grothaus 

334 

Maudslay  v.  Maudslay 

221 

Markey  v.  Brewster 

274 

MauU  r.  Vaughn 

210 

Marklay  v.  Wartuian 

67 

Maunsell  v.  White 

178 

Marlett  y.  Wilson 

279 

Mawson  v.  Blane 

433 

Marlow  v.  Pitfield 

414 

Maxson  v.  Sawyer 

311 

Marr'&  Appeal 

388 

Maxwell,  Ex  parte 

306 

Marrick  v.  Grice 

138 

V.  Campbell 

303,  364 

Marsh,  Ex  parte 

173 

May  r.  Duke 

348,  386 

V.  Alford 

151 

V.  May                          374 

375,  376 

V.  Blackman 

265 

Maybin,  Re 

367 

V.  Loader 

395 

Mayer  i'.  McLure 

445 

V.  Marsh 

53 

120 

Mayfield  v.  Clifton 

84 

w.  Rulesson 

473 

Mayliew  v.  Baker 

164 

Marshall  v.  Crutwell 

190 

V.  Thayer 

61,66 

V.  Marshall 

218 

Mayne  v.  Baldwin 

251 

V.  Oakes 

75 

Mayo  V.  Hutchinson 

143 

V.  Rutton 

58,67 

Mazouck  V.  Northern  Iowa  R.  R.  Co.  155 

V.  Stewart 

492 

JNlcAdam  v.  Walker 

18 

V.  Wing 

451 

McAfee  v.  Kentucky  Universi 

ty        38 

Marston  v.  Brittenhaiia 

150 

,  155 

V.  Robertson 

7,72 

Martin,  Ex  parte 

334 

McAlister  v.  Oimstead 

319 

V.  Curd 

120 

McAllister  v.  McAllister 

218 

V.  Foster 

196 

318 

McAndrews  v.  Burns 

492 

V.  Gale 

414 

McBride  v.  McBride 

249 

V.  Mayo 

435 

McBurnie,  Ex  parte 

174 

0.  McDonald 

329 

McCahan's  Appeal 

348 

i;.  Payne 

261 

McCaleb  v.  Crichfield 

85 

V,  Stevens 

349 

McCall  v.  Flippin 

347,  349 

V.  Wey man 

449 

McCampbell  v.  McCampbell 

191,  192 

Marts  V.  Brown 

329 

M'Cartee  v.  Teller 

399 

Marvin  v.  Schilling 

347 

361 

McCarthy  v.  Guild 

262 

Mary  Clark's  Case 

460 

V.  Hinman 

239 

Mason  v.  Bowles 

168 

McCarty  v.  Carter 

440 

V.  Buclianaii 

352 

V.  Murray 

406 

V.  Dunbar 

162 

McChesney  v.  Brown 

133,  136 

V.  Fuller 

115 

M'Clallan  v.  Adams 

61 

D.  Hutchins 

252  a 

M'Ciellan,  Ex  parte 

245 

V.  Mason 

381 

V.  Kennedy 

388 

V.  Morgan 

68 

McClelland  v.  IVIcClelland 

362 

V.  The  Blaireau 

488 

McClendon  v.  Harlan 

367 

V.  Wait 

361 

MeClintic  r.  Ochiltree 

138 

V.  Wright 

408 

443 

M'Closky  V.  Cyphert               267  a,  268 

Massey  v.  Massey 

352 

McClure  v.  Commonwealth 

303,  326 

V.  Parker 

105 

V.  Evans 

272 

V.  Taylor 

473 

McClurg  V.  Terry 

23,26 

Massie  v.  Sebastian 

95 

McClurg's  Appeal 

36 

Massingale  v.  Tate 

305 

McCluskey  v.  Provident  Institution  162 

Master  v.  Fuller 

134 

McConnell  v.  Martin 

Ibb 

Matherson  v.  Davis 

447 

McCoon  V.  Smith 

423 

Mathews  v.  Cowan 

424 

McCormick  v.  Demary 

462 

TABLE   OF   CASES. 


Iv 


Section 

Section 

McCormick  v.  Ketchum 

473 

McKinnon  v.  McDonald 

164 

V.  McCormick 

36 

McKnight  v.  Walsh 

240 

V.  renn.  Central  R. 

208 

McLaurie  v.  Partiow 

255 

McCormie  v.  Lcggett 

409 

439 

McLean,  Succession  of 

7 

McCowan  v.  Donaldson 

111) 

V.  Longlands 

161 

M'Coy  V.  Huffman 

443 

M'Liskey  v.  Reid 

329 

McCrary  v.  Lowell 

250 

McMahon  v.  Davidson 

492 

M'Crillis  v.  How 

414 

V.  Lewis 

64 

McCrocklin  v.  McCrockliu 

218 

Mcl\lannis  v.  Rice 

861 

McCrosky  i-.  Parks 

452 

RlcManus  v.  Crickett 

263 

McCubbin  v.  Patterson 

217 

McMillen  v.  Lee 

241 

McCue  V.  Garvey 

199 

M'Minn  v.  Richmond 

404 

414 

M'CulIochs,  In  re 

317 

McMullcn  V.  McMullen 

190 

MeCullough  I'.  Wilson 

94 

McMurray  v.  jMciMurray 

451 

McCutchen  v.  McGaliay 

63,  GG 

M'Nair  v.  Hunt 

348 

McDaniel  v.  Edwai'd 

261 

McNeely  '•.  Jamison 

329 

V.  Mann 

337 

McNigiit  V.  Hogg 

457 

V.  Whitman 

82 

McPeck  V.  Moore 

457 

McDavid  v.  Adams 

81 

McPherson  v.  Commonwealth 

17 

McDonald,  In  re 

419 

McPhillips  I'.  McPhiUips 

316 

V.  Boeing 

461 

472 

McQueen  v.  Fulgham 

75 

V.  Crockett 

124 

Mead  v.  Hughes 

219 

V.  Meadows 

367 

Meader  v.  Page 

72 

V.  Montague 

443 

Meals  V.  Meals 

85 

V.  Snelling 

490 

Means  v.  Robinson 

391 

McDonnell  r.  Harding 

352 

Meara  v.  Holbrodk 

461 

McDow  V.  Brown 

388 

Mears  v.  Bickford 

252  a 

McDowell  V.  Caldwell 

338 

Mebane  v.  Mebane 

343 

V.  Georgia  R. 

259 

262 

Medbury  i\  Watrous 

443 

M'Dowles's  Case 

419 

Med  worth  v.  Pope 

281 

McDuff  V.  Beauchamp 

193 

Meek  v.  Kettlewell 

189 

McDuffie  V.  Mclntyre 

348 

352 

V.  Perry 

388 

McElfresli  v.  Kirkendall 

75 

Meeker  v.  Hurd 

443,  473 

478 

McElhenny's  Appeal 

374 

375 

V.  Wright 

193 

McElhcny  v.  Musick 

348 

Meese  v.  Fond  du  Lac 

77 

McElroy's  Case 

18 

Mcister  v.  Moore 

29 

McFaddin  v.  Grumpier 

143 

Mclbourn,  Ex  parte 

7 

McFaddyn  v.  Jenkyns 

189 

Mellish  V.  Mellish 

326 

389 

McFarland  v.  Conlee 

384 

JMendes  v.  Mendes 

299,  311 

313 

McFarlane  v.  Randle 

373 

Menifee  v.  Hamilton 

358 

McGan  v.  Marshall 

401, 

440 

Menk  r.  Steinfort 

53 

M'George  v.  Egan 

63 

Menvill's  Case 

89 

M'Giffin  V.  Stout 

449 

Mercein  v.  People 

216,  248 

251 

M'Gill  V.  Woodward 

437 

Mercer  v.  Jackson 

259 

McGloshlin  v.  Wyatt 

367 

V.  Whall 

463 

McGuire  i'.  Grant 

461 

Merchants'  Bank  i:  Scott 

143 

McGunigal  v.  Mong 

278 

457 

Merchants'  Fire  Ins.  Co. 

•.  Grant 

438 

McHenry  v.  Davies 

67 

Meredith  v.  Crawford 

473 

Mclnnes  v.  More 

27 

Meriwetlier  v.  Smith 

162 

Mclntyre  v.  Knowlton 

154 

Merrells  i\  Phelps 

367 

McKanna  v.  Merry 

337 

413 

Merriam  v.  Boston  R. 

149 

McKavlin  v.  Bresslin 

162 

V.  Cunningham     411, 

412,  413 

425 

McKay  v.  Allen 

127 

V.  Harsen 

192 

McKee  v.  lleynolds 

217 

V.  Wilkitis 

437 

McKeever  v.  Ball 

361 

Merrick  v.  Plnmley 

154 

McKennan  v.  Phillips         112 

123 

218 

Merrill  v.  Bullock 

124 

M'Kenzie  v.  McLeod 

491 

V.  Smith 

162 

McKeown  v.  Johnson 

75 

Merritt  v.  Fleming 

279 

McKinney  v.  Clark 

24 

r.  Lyon 

116 

124 

V.  Hamilton 

152 

V.  Simpson 

351 

r.  Noble 

290 

V.  Williams 

431 

Ivi 


TABLE   OF   CASES. 


Merriweather  v.  Brooker 
Merry  v.  Nick.alls 
Messenger  v.  Clarke 
Messervey  v.  Barelli 
Metcalf  I'.  Lowther 
Metcalfe  t'.  Alter 


Section 
87 
407 
104,  132 
384 
32i) 
343 


Meth.  Ep.  Church  v.  Jaques     112,  13tj, 

139 

Metier  v.  Metier  53 

Metropolitan  Bank  v.  Durant  188 

V.  Taylor  143 

Mewhirter  v.  Hatten  77 

Mews  V.  Mews  161 

Meyer  v.  Haworth  51) 

Meyers  v.  Rahte  107 

Michael  v.  Alestree  490 

!•.  Morey  174 

Mickelberry  v.  Harvey  70,  72 

Mitldlebury  College  v.  Chandler      412 

Middleton  v.  Hoge  441 

Midland  R.  R.  Co.  v.  Pye                  219 

Miles  V.  Boyden  255,  449,  450,  451 

V.  Chilton  21 

V.  Lingernian  446,  447 

V.  Williams  88 

Milford  V.  Milford  239 

V.  Worcester  29 

Millard  v.  Hewlett  407 

Miller  v.  Albertson  133 

V.  Aris  482 

V.  Blackburn  82 

V.  Brown  143 

V.  Carnall  377 

,    V.  Cuddy  475 

V.  Delamater  72 

17.  Edwards  155 

V.  Harris  299 

V.  Hine  150 

V.  Miller  230,  231,  268,  277 

V.  Newton  143 

V.  Shackleford  90,  91 

V.  Simonds  270 

V.  Sims  408 

V.  Smith  407 

V.  State  50,  53 

V.  Stewart  277 

V.  Williams  87 

V.  Williamson  160 

Miller's  Appeal  272 

Miller's  Estate  351 

Mills  V.  Dennis  452 

V.  Graham  424 

V.  Humes  449 

r;.  Wyman  237,241,265 

Milner  v.  Lord  Harewood  341,  399 

V.  Milnes  77 

Miner  v.  Miner  248 

Minfee  v.  Ball  326 

Minock  v.  Shortridge  408 

Minor  v.  Betts  365 

Mitchel  V.  Reynolds  460 


Section 

Mitchell  V.  Berry 

451 

V.  Jones 

861 

V.  McElvin 

457 

V.  Mitchell 

115,  457 

V.  Otey 

122 

V.  Sawyer 

166 

V.  Seitz 

162 

V.  Treanor 

64,69 

V.  Union,  &c.  Ins.  Co. 

253 

V.  Williams 

382 

Mitford  V.  Mitford 

87 

Mix  V.  Andes  Ins.  Co. 

188 

Mizen  v.  Pick 

60,68 

Mockey  v.  Grey 

449 

Modawell  i".  Holmes 

317 

Moffatt  V.  Moffktt 

38 

Mohney  v.  Evans 

412,  413 

Mohr  V.  Mahierre 

361 

V.  Tulip 

361 

Mohry  v.  Hoffman 

261 

Molony  v.  Kennedy 

106,  107 

Monaghan  v.  School  District  '252,  267  a 
Moncrief  ?'.  Ely  279 

Monell  V.  Burns  474 

V.  Monell  382 

V.  Scherrick  270 

Monnin  v.  Beroujon  888 

Monroe  v.  Twistlelon  53 

Monson  v.  Williams  65 

Montague  r.  Benedict        61,  63,  64,  69 
Montford  (Lord)  v.  Cadogan  (Lord) 

140 
Montgomery  v.  Chaney  272 

V.  Henderson  177,  180 

V.  Montgomery  23,  227  a 

V.  Smith  301,  317 

V.  Sprankle  169 

V.  Tate  89 

V.  Tilley  186 

Montgomery  Bank  v.  Albany  Bank 

482 
Monumental,  &c.  Association  v.  Her- 
man 404,  409 
Moody  ;;.  Matthews  87 
Moon  V.  Towers                                   268 
Moore  v.  Abernethy                    439,  440 
V.  Baker                                       377 
V.  Christian                                  260 
V.  Cornell  94 
r.  Graves                                      894 
V.  Harris                                         107 
V.  Hazelton                                    388 
V.  Hood                                           377 
V.  Jones                                          124 
V.  Leseur  57 
V.  Metropolitan  R.  R.  Co.           490 
V.  Moore                         84,  397,  398 
V.  Morris                                105,  131 
V.  Ricliardson  89 
V.  Robinson                                    219 
V.  Sanborne                                   491 


TABLE   OF   CASES. 


Ivii 


Moore  v.  Shields 

V.  Stephenson 

V.  Tickle 

?;.  Wallis 

V.  Webster 

t;.  Whittaker 
Moorehead  v.  Orr 
Moorcs  I'.  Moores 
Moorhouse  v,  Colvin 

V.  Myall 
Moreau  v.  Branson 
Morehouse  v.  Cooke 
Moreland  v.  Davidson 
Morgan  v.  Anderson 

V.  BoUes 

V.  Dillon 

V.  Hannas 

V.  Hughes 

V.  Johnson 

V.  Morgan 

V.  Perhamus 

V.  Perry 

V.  Shelton 

V.  Smith 

V.  Thames  Bank 

V.  Thorne 
Moritz  V.  Garnhart 
Morrell,  In  re 

V.  Dickey 

V.  Morrell 
Morrill  v.  Aden 
Morris  v.  Davies 

V.  Garrison 

V.  Harris 

V.  Low 

V.  Martin 

r.  Morris 

I'.  Palmer 

V.  Stephenson 

V.  Swaney 
Morrison  v.  Dobson 

V.  Kinstra 

V.  Thistle 
Morrison's  Case 
Morrow  r.  Whitesides 
Morse  v.  Royal 

V.  Welton 

V.  Wheeler 
Mortara  v.  Hall 
Mortimer  v.  Mortimer 
Mortimore  v.  Wriglit 
Morton  v.  Rainey 

V.  Sims 
Moseby  v.  Partee 
Moseley  v.  Rendell 
Moses  V.  Eorgartie 

V.  Stevens 
Moss  V.  Pacific  R.  R.  Co. 
Mosteller's  Appeal 
Motes  V.  Madden 
Motley  V.  Head 


Section 
374 

2iy 

489 
367 
107 

31 
373 

3G 

177,  179 

116,  120 

145 

305,  316 

472 

316 

162 

316,  318 

374 

63 
385 
371,  375 
167 
226 
464 
260,  487 

82 

450 

280 

365 

328,  329 

19 

424,  425,  446 

225 

343 

300 

254,  267  n 

66 
23,  360 

61 

93 
225 

27 

364,  386 

192 

329 

56 
386 
268 
445 
413 
216 
241 
274 
307 

94 
210 

64 
443 
492 
269 
377 
880 


Section 


Motley  V.  Motley 

389 

Mott,"/?e 

354 

V.  Consumers'  Ice  Co 

491 

Motteaux  v.  St.  Aubin 

402 

Moulton  V.  Haley 

155 

Mount  V.  Kesterson 

94 

Mountain  v.  Fisher 

443 

Mountfort,  Ex  parte 

246 

Mowbray  v.  Mowbray 

239 

Mowbry  c.  Mowbry 

273 

Moye  V.  Waters 

119 

Moyer's  Appeal 

155 

Mud  way  v.  Croft 

18 

Mulford  V.  Beveridge 

361 

Mulhallen  v.  Maruin 

388 

Mulhern  v.  McDavitt 

374 

Muller  V.  Benner 

321,  343 

350 

Mulvey  v.  State 

50 

Mumford  v.  Gething 

460 

Mundy  v.  Earl  Howe 

238 

Munger  v.  Hess 

424 

Munn  V.  Reed 

429 

Munro  v.  Munro 

226 

V.  Saunders 

231 

Munroe  v.  De  Chemant 

71 

V.  Phillips 

326 

Munson  v.  Munson 

303 

V.  Washband 

412 

Murdock  v.  Murdock 

273 

Murpliree  v.  Singleton 

86 

Murphy  v.  Green 

390 

I.'.  Johnson 

409 

V.  Ottenheimer 

241 

Murray  v.  Barlee 

134 

V.  Currie 

492 

V.  Mann 

477, 

489 

Musgrave  v.  Conover 

361 

Musser  v.  Gardner 

53 

V.  Oliver 

382 

388 

V.  Stewart 

279 

Musson  V.  Trigg 

124, 

136 

Mustard  v.  Wohlford 

404, 

442 

Myer  v.  Rives 

388 

Myers  v.  King 

188, 

191 

V.  Myers 

2.S8 

V.  PearsoU 

317 

V.  Wade 

338 

339 

N. 


Nace  V.  Boyer 

24 

Naden,  Ex  parte 

16 

Nairn  v.  Prouse 

173 

Nalle  V.  Lively 

188 

Nance  v.  Nance 

353,  372 

Napier  ?\  Effingham 

398 

Nash  ('  Mitchell 

143,  153,  167 

V.  Nash 

83 

V.  Spofford 

95 

Iviii 


TABLE  OP   CASES. 


Section 

Nashville,  &c.  R.  R.  Co.  v.  Elliott    443 

National  Bunk  v.  Sprague  108 

Nations  v.  Cudd  472 

Naylor  v.  Fall  River  Co.  4G4 

V.  Winch  38G 

Neal  V.  Gillett  423 

V.  Gilmore  273,  473 

Neal's  (Paul)  Case  161 

Nedby  v.  Nedby  190 

Needham  v.  Bremner  6(3 

Needles  v.  Needles  83 

Neeld  (;.  Neeld  46 

Neill  V.  Neill  307 

Neil's  Appeal  277 

Neilson  v.  Cook  373,  374,  375 

Neimcewicz  v.  Gahn  95 

Nelson  v.  Eaton  402 

V.  Garey  72 

V.  Goree  198 

V.  Green  304 

V.  Holly  155 

V.  Lee  330 

V.  Miller  143 

V.  Searle  59 

V.  Smith  119 

V.  Stocker  425 

V.  Wyan  272 

Netterville  v.  Barber  167 

Nettleton  v.  State  317 

Neufville  v.  Thompson  162 

Neves  v.  Scott  174,  177 

Nevius  V.  Gourley  114,  155 

Newbery,  In  re  340 

Newbrick  r.  Dugan  164 

Newcomen  v.  Ilassard  133,  134 

Newcomer's  Appeal  307 

New   Hampshire  Fire  Ins.  Co.  n. 

Noyes  403,  411 

Newlands  );.  Paynter  82,  104,  132 

Newman  v.  James  124 

V.  Morris  169 

V.  Reed  353,  374,  370 

Newport  v.  Cook  238,  240 
Newry  &  Enniskillen  R.  R.  Co.  v. 

Coombe  407 

Newton  v.  Hatter  77,  79 
V.  London,  Brighton,  &c.  R. 

R.  Co.  450 

V.  Roe  57 

Nichol  V.  Martyn  477,  487 

V.  Steger  413 

Nichols  V.  Allen  279 

V.  O'Neill  89 

Nicholson  v.  Heiderhoff  148 

V.  Spencer  337 

V.  Wilborn  71,  313,  413,  449 

Nicholson's  Appeal  316,  317,  348 

Nickerson  v.  Easton  267  a 

V.  Howard  457 

Nickson  ?•.  Brohan  489 

NicoU,  Matter  of  301 


Section 

NicoU,  V.  Greaves  458 
Nightingale  v.  Withington     252,  267  a, 
268,  402,  404 

Niller  v.  Johnson  187 

Nimmo  v.  Walker  473 

Nine  v.  Starr  279 

Nippe's  Appeal  188 

Nisi)el  V.  Lnparle  106,  167 

Nissley  v.  Ileisey  110,  155 

Noble  V.  Runyan  361 

Noice  V.  Brown  260,  487 

Nolte  V.  Libhert  402 

Norbury  v.  Norbury  353 

Norcross  v.  Stuart  77 

Norris  v.  Beyea  114 

V.  Dodge's  Admr  241 

V.  Lantz  85 

V.  Vance  437,  445 

North,  In  re  235,  333 
North  American  Coal  Co.  v.  Dyett     138 

Northcote  v.  Doughty  433 

Northern    Line    Packet  Co.    v. 

Shearer  53 

North  Penn.  R.  R.  Co.  v.  Maho- 

ncy  429 

Northwestern  Life  Ins.  Co.  v.  Allis     145 

Norton  r.  P'azan  66 

V.  Nichols  58 

V.  Rhodes  65 

V.  TurviU  134 

Norwood  V.  Stevenson  79 

Nowlan  v.  Ablett  458 

Noyes  v.  Bhikenian  138 

Nugent  V.  Vetzera  328 

Nunn  V.  Hancock  356 

Nurse  v.  Craig  68 


o. 

Oakes  v.  Cakes  269 
Oakley  v.  Pound  143 
Obermayer  v.  Greenleaf  174 
O'Brien  v.  Strang  376 
O'Coiuur  V.  Carver  385 
O'Connor  i'.  Adams  492 
O'Daily  v.  Morris  58,  148 
Odeiid'hal  v.  Devlin  188 
Offley  V.  Clay  58 
O'Flahertv  v.  Union  R.  R.  Co.  429 
O'Gara  y.'Eisenlohr  204 
Ogden  !'.  Prentice  63,  64 
Oglander  v.  Baston  88 
Oglesby  Coal  Co.  v.  Pasco  58,  97 
Oglcsby  V.  Hall  109 
O'Hara  v.  Alexander  137 
V.  Shepherd  350,  353,  373 
Ohio,  &c.  R.  R.  Co.  V.  Hammers- 
ley  492 
O'Keefe  v.  Casey  317,  319 


TABLE   OF    CASES. 


llX 


Section 
O'KiU  V.  Campbell  124,  127 
Oinson  V.  Heritage  GO,  G7 
Okliu  V.  Saraborn  3S9 
Oliver  v.  Iloudlet                337,  344,  402 
V.  McClellan  423 
V.  McDuffie  413 
V.  Oliver  34 
V.  Woodroffe  40G 
Olivier,  Succession  of  2Go 
Olney  v.  Howe  71 
O'Neil's  Case  31G 
Onslow,  In  re  433 
Opdyke's  Appeal  277 
Ord  V.  Blackctt  333 
Ordinary  v.  Heishon  366,  37G 
V.  Smith  3G7 
V.  Thatcher  3GG 
Ordway  v.  Bright  124 
V.  Phelps  388 
V.  Smith  303 
Oriental  Bank  v.  Haskins  187 
Orland's  Case  89 
Orleans  Probate  Court  v.  Child        377 
Orneville  i'.  Glenbuni  2G3 
O'Roi-ke  V.  Bolinbroke  452 
Orvis  V.  Kimball  435 
Osborn  v.  Allen  245 
V.  Gillett  259.  487 
Osborne  v.  Edwards  85,  89,  D2 
V.  Van  Horn  239,  210 
Osburn  v.  Farr  414 
Osgood  V.  Breed's  Heirs  272 
Oswald  V.  Broderick  437 
Otte  V.  Becton  238,  210 
Ottman  v.  Moak  438 
Overliolt  V.  Ellswell  79 
Overseers  of  Alexandria  v.  Over- 
seers of  Bethlehem  252  a 
Overton  v.  Bannister  425 
V.  Beavers  337 
f.  State  53 
Owen  V.  Bryant  281 
V.  Cawiey  130,  149 
V.  Gooch  481 
V.  Horaan  134 
V.  Long  404 
V.  Peebles  353,  374 
V.  State  44,  457 
V.  White  '  241 
Owens  V.  Chaplain  457 
V.  Cowan  361 
V.  Dickenson  134 
V.  Mitchell  374 
V.  Walker  4U 
Oxford  V.  Peter  491 
Oxley  V.  Tryon  407 
Oxnard  v.  Swanton  168 
Ozley  V.  Ikelheimer  124 


Section 

Packard  v.  Arel lanes 

7 

Packer  v.  Windham 

88 

Paddock  V.  Wells 

16 

Padfield  v.  Padfield 

205 

Page  V.  Defrics 

490 

V.  Marsh 

457 

V.  Morse 

446 

V.  Page 

94 

0.  Wells 

478 

Paine  v.  Farr 

153 

V.  Hunt 

145 

Palmer  v.  Miller 

404 

438 

V.  Oakley     .  301,  306,  308,  351,  361 

I'.  Portsmouth  461 

V.  Trevor  83 

Palmes  v.  Danby  347 

Pardridge  v.  La  Pries  489 

Parish  of  St.  Andrew  v.  De  Breta    237 

Park  V.  Hopkins  75 

Parke  v.  Barron  22 

V.  KIceber  61 

Parker  v.  Baker  402 

V.  Brooke  105,  108 

V.  Converse  129 

V.  Elder  446 

V.  Lincoln  305 

V.  Parker  18 

V.  Piatt  478 

V.  Simonds  145,  108 

V.  Steed  57 

V.  Way  225 

Parker's  Appeal  16 

Parks  V.  Cushman  83 

Parmele  v.  McGinty  363,  385 

Parmelee  v.  Smith  253 

Parmell,  Goods  of  300 

Parshall  v.  Fisher  168,  169 

Parsons  v.  Hill  402 

V.  Keys  413, 414 

V.  Ivinzer  453 

V.  Trask  460 

Parton  v.  Hervey  20 

Partridge  v.  Stocker  164,  165,  168 

Paschall  v.  Hall  189 

V.  Thurston  87 

Passenger  K.  R.  Co.  v.  Stutler  431 

Patcliett  V.  Ilolgdte  225 

Patchkin  v.  Cromack  404 

Paterson  v.  Gandasequi  481 

Patnote  v.  Sanders  473 

Patrick  v.  Littell  143,  144,  158 

V.  Patrick  188 

Pattee  v.  Harrington  77 

Patten  i>.  Patten  120, 153,  155 

Patterson  v.  Flanagan  152 

V.  Gaines  21,  225 

V.  High  200 

i\  Lawrence  157 

Patton  V.  Charlestown  Bank  136 


Ix 


TABLE   OF   CASES. 


Section 

Patton  V.  Furthmier  450,  451 

V.  Gates  168 

V.  Ilassinger  241 

V.  Thompson  361,  386 

Paty  V.  Smith  330 

Paul  V.  Children  281 

V.  Hummel  263 

V.  York  448 

V.  Paulding's  Will  37 

Paulin  V.  Ilowser  263 

Pauhnier  v.  Erie  R.  li.  Co.  492 

Pawson  V.  Brown  16 

Payne  v.  Ilutcheson  188 

V.  Scott  338 

V.  Stone  351 

Peacock  v.  Peacock  333,  473 

Peacock's  Trusts,  Re  163,  166,167,210 


Peake  v.  La  Baw 
Pearce  v.  Olney 
Pearman  v.  Pearman 
Pearson  v.  Darrington 

V.  McMillan 
Peaslee  v.  McLoon 
Peck  V.  Braman 

V.  Peck 
Pedley  v.  Wellesley 
Peigne  v.  Snovvden 
Pellage  v.  Pellage 
Pemberton  v.  Johnson 

V.  McGill 
Pence  v.  Dozier 
Pendrell  v.  Pendrell 
Penfold  V.  Mould 
Penleaze,  Ex  parte 
Penn  v.  Ileisey 

V.  Wliiteheads 

V.  Young 
Pennington  v.  Fowler 


145 

238 
44 
61,  64,  68 
376,  382 
53 
373 
26,  27 
53 
186 
268 
148 
156 
262 
225 
189 
238 
389 
154,164,  165,168 
155 
326 


Pennsylvania  E.  v.  Baiitom  250 

V.  Keller  259 

V.  Lynch  492 

Penn.  R.  R.  Co.  v.  Kelly  262 

Penrose  i^.  Curren  424 

Pentz  V.  Simonson  14.3,  150 

People  V.  Board  of  Education  235 

V.  Boice  249,  298 

V.  Brooks  249 

V.  Byron  321,  322 

V.  Ciiegaray  248 

V.  Circuit  Judge  360 

V.  Clark  261 

V.  Dean  394 

V.  Gates  457 

V.  Houghton  53 

V.  IngersoU  350 

V.  Juvenile  Asylum  457 

V.  Kearney  300,  303 

V.  Kendall  395 

V.  Kling  278,  298 
V.  Mercein     248,  249,  250,  251,  254 

V.  New  York  449 


Section 

People  V.  Olmstead 

245,  248 

V.  Overseers 

225 

V.  Pettit 

42 

V.  Pillow 

457 

V.  Randolph 

395 

V.  Slack 

20 

V.  Townsend 

395 

t'.  Turner 

256 

V.  Weissenbach 

457 

V.  Wilcox      245,  305, 

308 

332,  333 

V.  Winters 

44 

V.  Wright 

60 

Pepper  v.  Lee 

117 

123,  124 

V.  Smith 

150 

V.  Stone 

315 

321,  322 

Pepperell  v.  Chamberlain 

86 

Perkins  v.  Cottrell 

89 

V.  Elliott 

143,  145 

V.  Finnegan 

316 

V.  Perkins 

190 

V.  Smith 

482 

Perliiian  ly.  Phelps 

252a 

Perrin  v.  Wilson 

413 

Perry  v.  Bailey 

473 

V.  Brainard 

311 

V.  Carmicliael 

255, 

259,  324 

V.  Perry 

269 

V.  Ricketts 

492 

V.  Simjison  &  Co. 

472,  474 

V.  Wliilehead 

281 

Ferryman  v.  Burgster 

450,  451 

Person  v.  Chase 

407 

,421,443 

Peters  v.  Fleming 

411,413 

V.  Fowler 

120 

V.  Lord 

487 

Petersham  v.  Dana 

278 

Peterson  v.  Haffner 

423 

V.  laik 

440 

V.  Slate 

398 

Petre,  Ex  parte 

239 

Pettus  V.  Clauson 

354 

V.  Sutton 

353 

Petty  V.  Anderson 

163 

V.  Roberts 

440, 

442,  446 

Peyton  v.  Smith 

299 

Pf'eiffer  v.  Knajip 

382,  385 

Pfirshing  v.  Falsh 

149 

Pilaris  V.  Leachnian 

89 

Phelps  V.  Culver 

457 

V.  Morrison 

187 

V.  Phelps 

83 

V.  Wait 

482 

V.  Worcester 

412,  413 

Philadelphia  v.  Williamson 

17 

Phillippi  ('.  Commonwealth 

279 

Phillips,  Ex  parte 

347,  357 

V.  Allen 

225 

V.  Barnet 

52 

V.  Davis 

3.38,  374 

V.  Dnscnberry 

452,  453 

V.  Fo.xall 

476 

TABLE   OF   CASES. 


Ixi 


Phillips  I'.  Graves 

0.  Green  405,  409, 

V.  Meyers 

V.  Phillips 

V.  Wooster 
Phillipson  v.  Hayter 
Philpot  V.  Bingliam 
Phoebe  v.  Jay 
Picard  v.  Hine 
Pickering  v.  De  Rocliemont 

V.  Pickering 
Pickler  v.  State 
Pico,  Re 
Pidgin  V.  Cram 
Pierce,  Matter  of 

V.  Irish 

V.  Millay 

V.  Pierce 

I'.  Prescott 

V.  Waring 
Pierson  v.  Liim 
Pigott  V.  Pigott 
Pike  V.  Baker  72, 

Pilkington  v.  Scott 
Pillar  V.  Pillar 
Pillow  V.  Bushnell 
Pirn  V.  Downing 
Pina  V.  Peck 
Pinard's  Succession 
Pingree  v.  Goodrich 
Pinkston  v.  McLemore 
Pinney  v.  Fellows  112, 

Pippen  V.  Wesson  114, 

Pitcher  v.  Laycock 

V.  Turin  Plank  Road  Co. 
Pitt  V.  Pitt 

V.  Smith 
Pittman  v.  Pittman 
Pitts  V.  Cherry 
Pixler  V.  Nichols 
Place  V.  Rhem 
Planche  v.  Colburn 
Planchet,  Succession  of 
Platner  v.  Patchin 
Ploss  V.  Thomas 
Plotts  V.  Rosebury 
Plowes  V.  Bossey 
Plumer  v.  Lord 
Plummery.  Webb_  252, 

Poindexter  v.  Jeffries 
Pollard  V.  New  Jersey  R. 
Pond  V.  Carpenter 

V.  Curtiss 

!'.  Skeen 
Pool  V.  Gott 
Pooley  V.  Webb 
Poor  V.  Gansett 
Pope  V.  Jackson 

V.  Sale 

Porch  V.  Fries  96, 

Port  V.  Port 


Section 

Section 

143 

Porter  V.  Allen 

53 

438,  439 

V.  Bank  of  Rutland 

123,  124 

187 

V.  Bleiler 

381 

363 

V.  Briggs 

61 

187 

V.  Caspar 

155 

61,  63 

V.  Ganiba 

167,  168 

401,  406 

V.  Haley 

149 

473 

V.  Mount 

75 

134,  135 

Porterfield  v.  Augusta 

37 

77,  382 

Portsmouth,  Countess  of, 

V.  Earl  of 

72 

Portsmouth 

23 

406 

Posey  V.  Posey 

397 

277 

Post,  Ex  parte 

452 

241 

Post's  Estate 

352 

290 

Poston  V.  Young 

304 

872,  388 

Potinger  v.  Wightman 

230,  334 

259,  429 

Pott  ('.  Cleg 

82 

183 

Potter  V.  Faulkner 

492 

376,  386 

V.  Hiscox 

352,  377 

387 

V.  State 

367,  369,  376 

150 

Potts  V.  Cogdell 

177 

88 

Poultney  v.  Glover 

269 

116,  190 

V.  Randall 

377 

460,  469 

Poulton   V.   Soutli-Western   R.  R. 

44 

Co. 

491 

77 

Powell  V.  Boon 

353 

322 

V.  Cleaver 

246,  288 

226 

V.  Cobb 

24 

7 

V.  Evans 

352 

14 

V.  Gott 

406 

162 

V.  Jones 

381 

125,  186 

V.  Manson 

181 

143,  148 

V.  North 

351 

440,  446 

V.  Powell 

38 

431 

Powers  ('.  Russell 

71 

88,  203 

V.  Totten 

158 

18 

Powes  V.  Marshall 

77,82 

221 

Prall  V.  Smith 

114 

301 

Pratt  /'.  Jenner 

221 

473,  478 

V.  McJunkin 

369,  376,  388 

187 

V.  Nitz 

278 

472 

;;.  Pratt 

269 

7 

V.  Wright 

329,  366 

57 

Pray  v.  Gorham 

254 

168 

Prebble  i^.  Boghurst 

176 

241 

Preble  v.  Longfellow 

337 

225 

Prentice  v.  Decker 

253 

169 

Prentiss  v.  Ledyard 

458,  463,  473 

259,  260 

Prescott  V.  Brown 

80 

188 

V.  Fisher 

56 

78 

V.  Morris 

424,  425 

14 

Preston  v.  American  Linen  Co.        464, 

343,  350 

475 

183 

Preusser  v.  Hcnshaw 

169 

251 

Prevot  V.  Lawrence 

115 

127 

Prewit  V.  Wilson 

174 

237 

Price,  In  re 

45 

360 

Matter  of 

361,  363 

278 

V.  Duggan 

450 

202,  313 

V.  Hewett 

425 

26,27 

V.  Jenkins 

174 

Ixii 


TABLE   OF   CASES. 


Price  V.  Price 

V.  Sanchez 

V.  Sanders 

V.  Strange 

V.  Winter 
Prichard  v.  Ames 

V.  Priciiard 
Prickett  v.  Prickett 
Priestley  v.  Fowler 
Pritcliard  v.  Hitclicock 
Probate  Court  v.  llibbard 

IK  Strong 
Proctor  V.  Sears 
Prole  V.  Soady 
Proud  foot  V.  Poile 
Proudley  v.  Fielder 
Prout  V.  Hoge 

V.  Koby 

j;.  Wiley 
Prouty  V.  Edgar 
Provost  V.  Carlin 
Prowse  V.  Spurway 
Pulbrook,  In  re 
Purdew  v.  Jackson 
Pursley  v.  Hayes 

V.  Hays 
Pusey  V.  Harper 
Putnam  v.  Putciiie 

V.  Tennyson 

V.  Town 
Pybus  V.  Smith 
Pyle  V.  Cravens 


Q- 


434 


435, 
416, 


94, 


Section 

73 

121 

412,414 
205 
435 
105 
44 
269 
492 
478 
329 
SOG 

435,  437 
221 
450 
107 
115 
124 

439,  410 

418,  426 

472 

29 

246 

98 

861 

439 

188 

350 

59 

269 

110,  137 
406 


Queen  ?•.  Allen 

21 

V.  Carnatic  R  R.  Co. 

111 

V.  Cresswell 

29 

V.  Curgerwen 

21 

V.  Kenny 

51 

V.  Lumley 

21 

V.  Prince 

260 

Querin  v.  Carlin 

388 

Qiiidort  V.  Pergaux 

162 

Quigley  v.  Graham 

114 

Quincy  v.  Quincy 

66 

Quinlan  v.  Quinlan 

178 

R. 

R.  V.  Pucklcdiurch  458 

Rabb  V.  Aiken  89 

Rabe  v.  Hanna  41 

Racouillat  v.  Requena  372 
Radford  v.  Carwile                      129,  133 

Railroad  v.  Hanning  461 

Railroad  Co.  v.  Fort  492 

V.  Harris  91 


Section 

Railsback  v.  Williamson 

382 

Rainey  i'.  Rainey 

155 

Rainsford  v.  Rainsford 

439 

Ralston,  Ex  parte 

333 

V.  Kohl 

472 

V.  Laliee 

453 

Ramsay  v.  Ramsay     805, 

316,  832 

333 

I'.  Richardson 

174 

Randall  v.  Lunt 

188 

V.  Randall       43,  188, 

191,  217 

218 

V.  Sweet 

414 

Randies  v.  Randies 

188 

Rankin  v.  Kemp 

343 

V.  Miller 

361 

V.  Warner 

453 

Ransom  v.  Nichols 

198 

V.  Ransom 

192 

Ransome  v.  Burgess 

238 

Rapalje  v.  Norsworthy 

388 

Railibun  V.  Colton 

375 

Rawlings  v.  Bell 

470 

Rawlins  v.  Rounds 

77 

V.  Vandyke 

69 

Rawson  r.  I'ennsylvania  R.  R.  Co. 

208 

Ray,  Ex  parte 

105 

V.  Haines 

443 

V.  Tubbs 

414, 424 

431 

Raybold  v.  Raybold 

162 

Rayland  i\  Justices 

377 

Raymond  v.  Loyl 

241 

r.  Minton 

457 

V.  Sawyer 

343 

Rayner  v.  Mitchell 

491 

Raynes  v.  Bennett 

53,61 

Rea  v.  Durkee 

06,  69 

V.  Tucker 

53 

Read  r.  Drake 

305 

V.  Teakle 

64 

Reade  r.  Earle 

155 

V.  Livingston        112, 

175,  186, 

187 

Reading  i'.  Mullen 

167,  169 

170 

Ready  v.  Bragg 

188 

V.  Hamm 

210 

Ream  f.  Watkins 

267  a 

268 

Redd  V.  Jones 

363 

Rcfldie  V.  Scoolt 

261 

Redfield  v.  Buck 

188 

Redgrave  v.  Redgrave 

63 

Redman  v.  Chance 

308 

Reed  r.  Batchelder 

403 

404 

V.  Beazley 

218 

c.  Boshears 

445 

V.  Legard 

67 

V.  Moore 

66 

V.  Ryburn 

375 

V.  Timmins 

354 

V.  Williams 

262 

Reeder  v.  Flinn 

155 

Reeds  v.  Timmins 

376 

Rees  r.  Keith 

83 

Reese  v.  Chilton 

66 

TABLE   OF   CASES. 


Ixiii 


Section 

Section 

Reeves  v.  Eeeves 

21 

Rex  V.  Saunders 

468 

I'.  Webster 

118,  120 

V.  Shinfield 

473 

Regina  v.  Bleasdale 

4!)a 

V.  Soper 

278 

V.  Brighton 

10 

V.  Sow 

458 

V.  Chad  wick 

16,21 

V.  Standon  Massey 

458 

V.  Chark 

250,  ;;32 

V.  St.  Helen's 

458 

V.  Clarke 

235 

V.  Sutton 

286 

V.  CoUingwood 

279 

V.  Twyning 

227 

r.  Daniel 

487 

V.  White 

398 

V.  Edwards 

244 

V.  Wifiiams 

398 

V.  Howes 

250 

V.  Wilmington 

267 

V.  Kelly 

45 

V.  Wilson 

408 

V.  Lord                           403 

407,421 

V.  Woodhurst 

458 

V.  Millis                              23,  27,  28 

V.  Worfield 

458 

i;.  Nicholas 

898 

Reynolds,  Matter  of 

301,  322 

V.  OrgiU 

28 

V.  Brandon 

183 

V.  Phillips 

395 

j;.  Lansford 

189 

V.  Plummer 

54 

V.  Reynolds 

23 

V.  Preston 

458 

V.  Robinson 

162 

V.  Kavenstonedale 

458 

V.  Sweetser 

66,  237 

V.  Smith 

251,  468 

V.  Walker 

354,  372 

V.  Wliite 

244 

Rhea  v.  lihenner 

219 

Register  v.  Hensley 

20(5 

Rhett  V.  Martin 

452 

Reich  V.  Reich 

188 

Rhoads  v.  Rhoads 

452 

Raid  1'.  Laing 

27 

Rice  V.  Hoffman 

89,  116 

i;.  Rochereau 

7 

V.  Lumley 

221 

Reniders  v.  Koppclmann 

232 

V.  Rice 

31 

Renaux  v.  Teakle 

61,64 

Rice's  Case                  300,  303 

328,  329 

Rennie  v.  Ritchie 

103 

Rich  r.  Cockell                    104 

131,  137 

Resor  v.  Resor                       84, 

175,  191 

Richards  v.  Burden 

53 

Revett  V.  Harvey 

388 

V.  Hayward 

477 

Rex  V.  Barton 

4(52 

V.  Richards 

44,  451 

V.  Birmingham 

30 

Richardson  v.  Boright 

404,  437 

V.  Brazier 

398 

V.  Boynton 

366,  3(57 

V.  Burton 

23 

V.  Du  Bois 

67 

V.  Burton-upon-Trent 

24 

V.  Fouts 

262 

V.  Coggeshall 

458 

V.  Kimball 

482 

V.  Delarel 

246 

V.  Linney 

388 

V.  Flintan 

Gl 

V.  McGoldrick 

472 

V.  French 

82 

V.  Merrill              ]  19,  162, 

164,  165 

V.  Great  Bowdtn 

458 

V.  Richardson 

350 

V.  Greenhill           24G,  248, 

250,  332 

V.  State 

386 

V.  Hodnett 

30 

V.  Stodder 

123,  137 

V.  Hopkins 

278 

Richardson's  Case 

255 

V.  Hoseason 

490 

Richmond  v.  Tibbies 

150 

V.  Htiggins 

403 

Ricker  v.  Ham 

187 

V.  Inliabitants  of  Sourton 

225 

Rickerstriker  v.  State 

53 

V.  Inhabitants  of  Wigston 

419 

Hideout's  Trusts,  In  re 

225 

11.  Isley 

240 

Rider  v.  Hulse 

161,  162 

V.  Killingholme 

458 

V.  Kelso 

270 

V.  Luffe 

225 

Ridgely  v.  Crandall 

403 

V.  Minshull 

24 

Ridgway  v.  English 

269 

V.  Moseley 

278 

V.  Ilungerford  Market  Co 

462. 

V.  Mountsorrel 

419 

463,  473 

V.  Munden 

237,  265 

Ridout  V.  Earl  of  Plymouth 

208 

V.  North  wingfield 

458 

Riggs  V.  Fisk 

440 

I'.  Oakley 

286,  350 

Riley  v.  Byrd 

277 

V.  Pierson 

311 

V.  Jameson 

254 

r.  Pike 

398 

V.  Mallory 

407,  409 

V.  Roach 

2(57 

V.  Riley 

88,  175 

V.  Rotherfield  Grays 

267 

Rimell  v.  Sampayo 

489 

Ixiv 


TABLE   OF   CASES. 


Section 

Section 

King  V.  Jamison 

445 

Rogers  v.  Smith 

258 

liinker  v.  Stroit                   329, 

338,  339 

V.  Steele 

443 

Rippon  I'.  Dawding 

176 

V.  Turner 

241 

liisdon,  Goods  of 

200 

V.  Ward 

143 

Rivers  n.  Carleton 

1G2 

Rohrer  v.  Morningstar 

451 

V.  Durr 

453 

Rollins  V.  Marsli          321,  337, 

343,  344 

V.  Gregg 

413 

Rooke  1'.  Lord  Kensington 

183 

V.  Tliayer 

177 

Roosevelt  v.  EUitliorp 

200 

Rives  V.  Sneed 

232 

Root  V.  Stevenson's  Adm'r 

424 

Roacli  V.  Garvan        313,  316, 

317,  332 

Roper's  Trusts,  In  re 

239 

V.  Jelks 

375 

Rose  V.  Brown 

188 

V.  Quick 

56,  416 

V.  Sanderson 

114 

Roadcap  v.  Sipe 

75 

Roseberry  v.  State 

487 

Robalina  v.  Armstrong 

278 

Roseborough  v.  Roseborough 

338 

Robbins  ?>.  Cutler 

407 

lioss  V.  Cobb 

350 

V.  Eaton 

438,  441 

V.  Ewer 

139 

V.  Mount 

423 

V.  Gill 

350 

Robert  v.  Morrin 

382 

V.  Ross 

68,  232 

Roberts,  Matter  of 

375 

V.  Singleton 

59 

V.  Dixwell 

107 

V.  Southwestern  R. 

303,  329 

V.  Frisby 

190 

V.  Winners 

57 

V.  Kelley 

71 

Ross's  Trust,  /n  re 

110 

V.  Place 

86 

Rounds  V.  Delaware  R. 

490 

V.  Polgrean 

87 

Roundy  v.  Thatcher 

448 

V.  Sacra 

343 

Ivourke  v.  Colliery  Co. 

461 

V.  Smith 

492 

Routh  V.  Howell 

352 

V.  Spicer 

105 

Routledgo  r.  Carruthers 

225 

V.  Stanton 

451 

Rowe  V.  Chichester 

87 

V.  Wiggin 

440 

V.  Hopwood 

433 

Robertson  v.  Cole 

24 

V.  Rowe 

137 

V.  Cowdry 

27 

Rowland  v.  Jones 

448 

V.  Norris 

90 

V.  Plummer 

190 

V.  Robertson 

217 

Rowley  v.  Adams 

93 

V.  State 

26,27 

V.  Unwin 

141 

V.  Wilbnrn 

58 

Rowney's  Case 

89 

Robinson  v.  Burton 

262 

Royce  v.  Charlton 

457 

V.  Cone 

429 

Royer's  Appeal 

347,  348 

V.  Gee 

209 

Royston  v.  Royston       98,  337 

338, 373, 

V.  Gosnold 

66,67 

375 

V.  Hersey 

343,  351 

Ruddock  V.  Marsli 

72 

V.  Hoffman 

154 

Rugh  V.  Ottenliciiiicr 

13,  114 

V.  Hoskins 

435 

Runifelt  V.  Clcmciis 

150 

V.  O'Neal 

117,  136 

Rumney  v.  Ke^  es 

65,  237 

V.  Robinson  53,  58,  94,  272,  354,  384 

Rundel  v.  Keeler 

411 

V.  Webb 

461 

Runkle  v.  Gale 

373 

V.  Weeks                      403 

407,  442 

Ruscombe  v.  Hare 

209 

V.  Zollinger 

300,  316 

Rush  V.  Wick 

402,  415 

Robson  r.  Osborn 

449 

V.  Vanvacter 

248,  250 

Roby  V.  Plielon 

192 

V.  Vought 

154,  267 

Roche  V.  Chaplin 

345 

Russel  V.  People's  Savings  Bank      145 

V.  Hart 

354 

Russell  V.  Brooks 

80,81 

Rochfort  V.  Fitzmaurice 

182 

V.  Coffin 

319 

Rodgers  v.  Pike  County  Bank 

83 

V.  Irby 

491 

Roe  V.  Deming 

260 

V.  Russell 

356 

Rogers  v.  Brightman 

175 

I?.  St.  Aubyn 

182 

V.  Brooks 

89 

Russell's  Appeal 

183 

V.  Cunningham 

183 

Ruttinger  v.  Temple 

279 

V.  Dill 

856,  363 

Ryall  V.  Kennedy 

230 

V.  McLean 

329 

Ryan  v.  Fowler 

492 

V.  Millard 

273 

V.  Madden 

77 

V.  Rogers 

112 

Ryder,  In  re 

241 

TABLE  OF   CASES. 


Ixv 


Ryder  v.  Bickerton 
V.  Hulse 
V.  Wombwell 


S. 

Sabel  V.  Slingluff 
Sackett's  Estate 
Sadler  v.  Robinson 
Safe  V.  Hammonds 
Sage  V.  Hammonds     372, 
Sale  V.  Crutclifield 

V.  Saunders 
Salisbury  v.  Van  Hoesen 
Sallee  v.  Arnold 
Salter  v.  Howard 
Saltmarsli  v.  Candia 
Sammis  v.  McLaughlin 
Sams  V.  Stockton 
Sanders  v.  Forgasson 
Sanderson  v.  Robinson 

V.  Sanderson 
Sandiland,  Ex  parte 
Sands  r.  Child 
Sanford  v.  Augusta 

V.  Lebanon 

V.  Sanford 
Sapp  V.  Newsom 
Sargent  v.  Mathewson 
Sartoris,  Goods  of 
Sasscer  ?'.  Walker 
Satterfield  v.  John 
Sattertliwaite  v.  Emiey 
Saul  r.  His  Creditors 
Saunders  v.  Saunders 
Saunderson  v.  Bell 

V.  Marr 
Savage  v.  Davis 

V.  Dickson 

V.  Robertson 

t'.  Walthew 
Savery  v.  King 
Saville  v.  Sweeney 
Sawyer  v.  Knowles 

V.  Sauer 
Sayers  i'.  Cassell 
Scarman  v.  Castell 
Scawen  v.  Blunt 
Schafer  v.  Luke 
Schaffer  v.  Lavretta 

V.  Reuter 
Scheel  v.  Eidman 
Schenck  V.  Strong 
Schiffer  v.  Prnden 
Schindel  r.  Schindel 
Schlosser's  Appeal 
Schmeltz  i\  Garey 
Schmidt  )'.  Holtz 

V.  Milwaukee,  &c.  R. 


Section 

140 

114,  198 

411,  412 


92 

290 
446 
307 
373,  376,  382 
225 

89 
376 

82 
487 

77 
167 
411 
370,  377 
183 
316 

48 
482 

78 
237 
193 

27 
260 
329 
3G6 
388 
175 
393 

44 
489 
406 

58 
343 
281 
478 
271 

77 

381 

258,  262 

367 

468 

83 
361,  363 
405 
191 
377 
424 
221 

66 

68 

7 

121 

R.  Co.   429 


Section 

Schmitheimer  v.  Eisenian    96, 

426,  447 

Schneider  r.  Starke 

89 

Schnuckle  r.  Bierman 

241,  260 

Sclioch  V.  Garrett 

273 

Schocnberg  v.  Voight 

252  a 

Sclioles  V.  Murray  Iron  Works 

Co.     37 

School  Board  v.  Jackson 

235 

Sciiool  Directors  v.  James 

334 

School  District  i'.  Bragdon 

423 

Schrimpf  v.  Settegast 

273,  275 

SchulUiofer  v.  Metzger 

61 

Sciiultz  V.  State 

53 

Sell um pert,  Ex  parte 

248 

Scidmore  v.  Smith 

487 

Scobey  v.  Gano                    306 

317,  377 

Scott  r.  Buchanan 

403,  439 

V.  Freeland 

386,  389 

v.  Gamble 

86 

V.  Mayor  of  Manchester 

461 

V.  Paquet 

18 

V.  Porter 

448,  452 

V.  Shufeldt 

23,24 

V.  State 

388 

V.  Watson 

423 

V.  White 

268 

Scott's  Account,  In  re 

377 

Scott's  Case 

324 

Scranton  v.  Stewart            405 

437,  447 

Scrutton  r.  Pattillo 

83 

Seaborne  v.  Maddy 

241 

Seager  v.  Sligerland 

261 

Seaman,  Matter  of 

370 

I'.  Duryea 

372 

Sears  ;'.  Giddey 

199 

V.  Terry 

303,  308 

Seaton  v.  Benedict 

63,64 

Seaver  i\  Morse 

474 

Seaverns  v.  Gerke 

303,  307 

Seavey  v.  Seavey' 

269 

V.  Seymour 

419 

Sebastian  v.  Bryan 

367 

Secchi's  Estate 

329 

Seigler  v.  Seigler 

374 

Seller  v.  People 

50 

Seitz  p.  Mitchell 

188 

Seitz's  Appeal 

274 

Selby  V.  Seiby 

311 

Selden  r.  Bank 

115 

Selden's  Appeal 

255 

Sellars  v.  Kinder 

262 

Sellen  v.  Norman 

468,  473 

Selover  v.  Commercial  Co. 

121 

Semple  v.  Morrison 

406 

Senseman's  Appeal 

3.32,  381 

Sequin  v.  Peterson 

253,  266 

Serle  v.  St.  Eloy 

398 

Serres  v.  Dodd 

77 

Sessions  v.  Kell 

301 

Sewall  r.  Roberts 

232 

Seward  v.  .Tackson 

270 

Sexton  V.  Wheaton 

186 

Ixvi 


TABLE   OP    CASES. 


856, 
274, 


Seymour  v.  Greenwood 

Shal'er  v.  Alialt 

Shaffner  v.  Brings 

Sliat'lier  v.  State 

Shakespeare  v.  Markham  273 

Shallcross  v.  Smith 

Shanck  v.  Korthern,  &c.  K.  R.  Co 

Shanks  v.  Edmondson  8: 

V.  Seamonds 
Shannon  ?'.  Canney 
Sliarp  V.  Cosserat 

V.  Cropsey 

V.  Findley 
Sharpe  v.  Foy 

V.  McPike 
Sharpless  r.  West  Chester 
Shartzer  c.  Love 
Shaw,  Succession  of 

V.  CoLle 

V.  Coffin 

V.  Emery 

V.  Partridge 

V.  Reed 

I'.  Shaw 

V.  Steward 

V.  Tlionipson 
Sheahan  v.  Circuit  Judge 


Section 
490 

77 
3G3 

20 
473 

58 
402 
352 
SCO 
145 
186 
273 
448 
174 
155 
115 

58 
329 
374 
424 


72 

89 

491 

36,  46,  350 

88 

67 

452 


V.  Wayne  347,  352 

Shearman  v.  Akins  S22 

I'.  Angel  281 

Slieldon  v.  Newton  439 

Shelley  v. 225 

Shelton  v.  Springett  241 

Shenk  v.  Mingle  279 

Shepard  v.  Pratt  187 

Shepherd  v.  Bevin  .      270 

V.  Evans  343 

V.  Mackoul  61 

Sheppard  v.  Starke  57 

Sheridan  v.  Charlick  491 

Sherman  v.  Ballon  381 

V.  Brewer  383 

V.  Champlain  Trans.  Co.  472 

V.  Elder  168 

V.  Hannibal  427 

V.  Rochester  R.  R.  Co.  492 

V.  Wright  826 

Sherry  r.  Sansberry  889 

Sherwood  v.  Sherwood  120 

V.  Smith  272 

Sheton  V.  Smith  367 

Sliields  V.  Keys  148 

Shipman  v.  Horton  400,  446 

Shipp  V.  Bowmar  133,  136 

V.  Wheeless  361 

Shippen's  Appeal  155 

Shirley  (Ann),  Ex  parte  133 

Shirley  i'.  Shirley         82,  124,  125,  137 

ShoUenberger's  Appeal  376 

Shook  V.  State  829 

Short  V.  Battle  124, 134,  137 


Section 

Shorter  v.  Frazer  385 

Showers  r.  Robinson  230 

Shrewsbury  v.  Shrewsbury  203 

Shropshire  v.  Burns  435 

Shroyer  v.  Richmond  293,  366 

Shumaker  v.  Johnson  95 

Shurtleff  v.  Millard  442,  446 

Sliuster  V.  Perkins  366 

Shuttlesworth  v.  Hughey  450 

Sibbett  1-.  Ainsley  225 

Sichel  V.  Lambert  29 

Sickles  V.  Carson  23 

Sikes  V.  Johnson  423 

V.  Truitt  366 

Sillings  V.  Bumgardner  343 

Silveus  V.  Porter  166,  167 

Simmons  v.  Almy  343 

17.  McElwain  64, 188 

V.  Wilmott  468 

Simms  v.  Norris  844 

Simons  v.  Howard  106 

Simpson  v.  Alexander  452 

V.  Gonzales  316,  319 

V.  Graves  174,  175, 186 

V.  Simpson  218 

Sims  V.  Everhardt  96,  97,  409,  426,  447 

V.  Ren  wick  329 

y.  Rickets  117,  189,  190,  191 

V.  Spalding  92 

Simson  v.  Jones  399 

Sinclair  v.  Sinclair  453 

Singer  v.  McCormick  462 

Singer  Man.  Co.  v.  Rook  150,  156 

Singleton  v.  Love  385,  386,  389 

Sinklcar  v.  Emert  413 

Siter  V.  McClanachan  92,  94 

Skean  v.  Skean  42 

Skelton  v.  Ordinary  847 

Skillnian  v.  Skiilman     82, 162,  173,  188 

Skinner,  Ex  parte  246 

Skottowe  V.  Young  231 

Slanning  v.  Style  161,  191 

Slattery  i'.  Smiley  316 

Slaughter  r.  Cunningham  405,  407 

)•.  Glenn  117 

Slaymaker  v.  Bank  83 

Sleath  V.  Wilson  490 

Sledge  V.  Boone  452 

V.  Clopton  123 

Sleeman  v.  Wilson  282 

Sleigh  V.  Strider  226 

Sleight  t'.  Rend  114 

Sloan  V.  Hay  den  475 

V.  State  493 

Slocum  V.  People  261 

Sloper  V.  Cottrell  107 

Smalley  v.  Anderson  77 

Smalman  i'.  Agborow  90 

Smiley  v.  Meyer  168 

V.  Smiley  73 

Smilie's  Estate  83 


TABLE  OF   CASES. 


Ixvii 


Section 

Section. 

Smith  V.  Allen 

212 

Soullier  v.  Korn 

433 

V.  Bate 

816,  317 

Southall  V.  Clark 

388 

V.  Bean 

343 

Southard  v.  Plumraer 

114 

V.  Bo  wen 

432 

Southern  v.  How 

490 

V.  Chappell 

173 

Southwestern  R.  v.  Chapman 

255,  343 

V.  Chirrell 

174 

Southwick  V.  Southwick 

30 

V.  Davis 

61,  372 

South  worth  v.  Packard 

77 

V.  Derr 

231 

Spafibrd  v.  Warren 

150 

V.  Dibrell 

352 

Spain  V.  Arnott 

462,  473 

V.  Doe 

148 

Spalding  v.  Brent 

388 

V.  Evans 

446 

Sparhawk  v.  Allen 

348 

V.  Floyd 

450 

V.  Buel 

391 

i;.  Henry 

120 

V.  Buell's  Adm'r 

368 

V.  Hestonville  R. 

259 

V.  Sparhawk's  Ex'r 

238 

V.  Hewett 

120 

Sparkes  i'.  Bell 

57,  134 

V.  Kelly 

435 

Spaulding  v.  Day 

124 

V.  Knowles 

218 

Spaun  V.  Collins 

305 

V.  Knowlton 

268 

V.  Jennings 

127 

V.  Lapeer  County 

237 

Spear  v.  Cunimings 

260 

V.  Low 

438 

V.  Spear 

354 

V.  Lyke 

41 

Spears  i'.  Snell 

250,  457 

V.  Moore 

177,  180 

Speer  i'.  Tinsley 

338 

V.  Oliphant 

414 

Speight  V.  Knight 

308,  317 

V.  Philbriok 

376 

V.  Oiiviera 

261 

t;.  Reclus 

450 

Spellman  v.  Dowse 

861 

V.  Rog;ers 

273 

Spelman  v.  Terry                343 

348,  350 

V.  Sackett 

439 

Spence,  In  re 

303 

r.  Smith       18,216,252  a 

272,  353, 

Spence's  Case 

304 

390,  451 

Spencer  v.  Carr 

405 

V.  Starr 

127 

V.  Earl  of  Chesterfield 

315 

V.  State 

278 

V.  Lewis 

89 

V.  Thompson 

168,  472 

V,  Spencer 

181 

V.  Velie 

473,  474 

i;.  Storrs 

72 

V.  Young 

413 

Sperry  v.  Fanning 

344 

Smith's  Appeal 

337 

V.  Haslam 

114 

Smodt  V.  Lecatt 

222 

Spicer  v.  Earl 

443,  474 

Smout  V.  Ilberry 

212,  481 

V.  Spicer 

21 

Smyley  v.  Reese 

199 

Spier's  Appeal 

219 

Smyth  V.  State 

30 

Spinning  v.  Blackburn 

151 

Snavely  v.  Harkrader        316, 

329,  354, 

Spirett  V.  Willows 

105 

375 

Spooner  u.  Reynolds 

154 

Snediker  v.  Everington  252  a, 

254, 267  a 

Spots  wood  V.  Barrow 

462,  463 

Snell  V.  Elam 

388 

Spratt  V.  Spratt 

249 

Snelsou  v.  Corbet 

208 

Spring  V.  Kane 

361,  363 

Snider  v.  Ridgeway 

68 

I'.  Woodworth 

337 

Snodgrass's  Appeal 

351 

Springer  v.  Berry 

150,  156 

Snook  V.  Sutton 

350 

Sproule  V.  Botts 

450 

Snover  v.  Blair 

66 

Squier  v.  Hydliff 

443 

Snow  V.  Cable 

162 

Squire  v.  Whipple 

457 

V.  Paine 

155 

Stabler  v.  Cook 

388 

V.  Sheldon 

166 

Stables,  In  re 

238 

Snowhill  V.  Snowhill 

330 

Stackpole  v.  Beaumont 

890 

Snyder  v.  Hannibal  R. 

491 

Staley  v.  Barliito 

77 

V.  People 

51,  122 

Stall  V.  Macalester 

361 

V.  Webb 

173 

V.  Meek 

72 

Snyder's  Appeal 

127 

Stallwood  V.  Tredger 

29 

Somers  v.  Pumphrey 

94 

Stammers  r.  Macomb 

64 

Somerville  v.  Somerville 

230 

Standeford  v.  Devol 

83 

Somes  V.  Skinner 

343 

Standford  v.  Marshall               * 

138 

Sotoraayor  v.  De  Barros 

16 

Stanes  v.  Stanes 

218 

Soule  u.  Bonney 

23 

Stanford  v.  Murphy 

63 

Ixviii 


TABLE  OF   CASES, 


Stanley's  Appeal 
Stansbury  v.  Bertron 
Stanton  v.  Bell 

V.  Kirsch 

V.  Willson 
Stapleton  v.  Croft 
Starbird  v.  Moore 
Stark  V.  Gamble 
Starke  v.  Harrison 
Starkey  v.  Starkey 
Starkie,  Ex  parte 
Starling  v.  Balkum 
Starr  i-.  Peek 

V.  Wrioht 
Starrett  v.  Jameson 

V.  Wynn 
State  V.  Alford 

V.  Baird 

V.  Banks 

V.  Barrett 

V.  Barton 

V.  Beatty 

V.  Bennett 

V.  Bolte 

V.  Brady 

V.  Breice 

V.  Brown 

V.  Bunee 

V.  Burton 

V.  Camp 

V.  Clark 

V.  Clarke 

V.  Cleaves 

V.  Clottu 

V.  Cook 

V.  Craton 

V.  Davis 

V.  Dillon 

V.  Dole 

V.  Driver 

V  Engelke 

V.  Fleming 

V.  Toy 

V.  Grace 

V.  Handy 

V.  Harris 

V.  Harrison 

V.  Hays 

V.  Henry 

V.  Herman 

r.  Hewitt 

V.  Hodgskins 

V.  Hooper 

V.  Hoster 

V.  Hughes 

V.  Hulick 

V.  Hull 

V.  Hyde 

V.  Joest 

V.  Jolly 

V.  Jones 


Section 

352 

267  a 

462 

120 

237,241,411 

5:3 

451 

354,  388 

89 

36 
339 
339 
220 
41(3 
373,  375 

81 
244 
248 
248 
251 
395 
279 

53 
372 

17 
261 

53 

392,  393 

244 

50 

338,  360 

391 

50 
256 
337 

45 

23 
396 

30 

48 
317 
388 
372,  374,  386 
373 
395 

17 
353 
208 
388 
225 
366 

26 

17 
377 
877 
115 
377 
308,  335 
313 

53 
261,  324 


Section 

State  V.  King 

248 

V.  Learnard 

395 

V.  Lewis 

308,  326 

V.  Libbey 

251 

V.  Mabrey 

48 

V.  Martin 

366 

V.  McKown 

317 

V.  Miller 

26,27 

V.  Morrison 

352,  353 

V.  Murray 

884 

V.  Oliver 

44,48 

V.  Page 

367 

V.  Paine 

248 

V.  Parkerson 

50 

V.  Paul's  Ex'r 

377 

V.  Pitts 

161 

V.  Plaisted             404 

405,  437,  438 

V.  Potter 

50 

V.  Ransell 

61 

V.  Rhodes 

44 

V.  Rice 

260 

V.  Richardson 

248,  250 

V.  Scanlan 

398 

V.  Scott 

245,  257 

V.  Shackleford 

367 

V.  Shumpert 

225 

V.  Smith 

248,  251 

V.  Steele 

360 

V.  Stewart 

370 

V.  Strange 

372,  377 

V.  Taylor 

267  a 

V.  Thorn 

367 

V.  Tunnell 

373 

V.  Walker 

484 

V.  Weather  wad 

395,  404,  420 

V.  Whittier 

398 

V.  Wilson 

53 

V.  Womack 

374 

State  Nat.  Bank  v.  Robidoux              95 

Staton  V.  New 

94 

Stead  V.  Clay 

107 

V.  Nelson 

134 

Stearns  v.  Weathers 

114 

Steckel's  Appeal 

277 

Steed  V.  Cragh 

88 

Steedman  v.  Poole 

110 

Steel  V.  Steel               112, 

124,  268,  269 

Steele,  Re 

374 

IK  Tliacher 

260 

Steffey  v.  Steffey 

94 

Stehman  v.  Huber 

89 

Stein  V.  Bowman 

53 

Steinburg  v.  Menny 

53 

Stem's  Appeal 

352 

Stephens,  Succession  of 

329 

V.  James 

306,  329,  334 

Stephenson,  Goods  of 

196,  325 

V.  Hall 

260 

V.  Osborne 

218 

V.  State 

395 

V.  Stephenson 

450 

TABLE  OF   CASES. 


Ixix 


Section 

Section 

Stephenson  v.  Westfall 

391 

Stone  V.  Stone                                   265 

Sterling  v.  Adams 

426 

V.  Western     Transportation 

V.  Arnold 

385 

Co.                                        458 

V.  Potts 

212 

V.  Wood                                         194 

Stern  v.  Freeman 

435,  445 

Stoolfos  V.  Jenkins                             426 

S  terry  v.  Arden 

188 

Stopford  V.  Lord  Canterbury            238 

Stevens  v.  Armstrong 

491 

Storej'  V.  Ashton                                491 

V.  Parish 

150 

Storey's  Appeal                                  272 

V.  Keed 

158 

Storke  v.  Storke                                 840 

V.  Savage 

390 

Story  V.  Johnson                                488 

V.  Story 

66,69 

V.  Marshall                                   187 

Stevenson  v.  Belknap 

261 

V.  Pery                                           413 

V.  Bruce 

343 

V.  Walker                                   318 

V.  Gray 

29 

Stothoff  V.  Reed                                 374 

V.  Hardy 

61 

Stoughton's  Appeal                   350,  356 

V.  State 

369 

Stout  V.  Merrill                                  446 

Stevenson's  Appeal 

372 

V.  Perry                                          116 

Stewart,  In  re 

86 

Stovall  V.  Johnson           252  a,  253,  270 

V.  Bailey 

361 

Strain  v.  Wright                                   446 

V.  Ball 

120 

Strangeways  v.  Robinson                  278 

V.  Harvard  College 

492 

Stratton's  Case                                   343 

V.  Menzies 

26,27 

Stringfellow  v.  Mariot                       480 

V.  Munchandler 

17 

Striplin  v.  Ware                                    245 

V.  Tlobertson 

18,26 

Strode  v.  Magovvaa                            225 

St.  Ferdinand  Academy  v.  Bobb      273 
St.  George  v.  St.  Margaret  227  a 
V.  Wake  181 
Stidham  v.  Matthews            58,  94,  150 
Stigall  V.  Turaey  248 
Stigers  v.  Brent  453 
Stikeman  v.  Dawson  425 
Stiles  V.  Granville  267  « 
V.  Stiles  190 
Still  V.  Hall  473 
Stilley  V.  Folger  173 
Stillraan  v.  Ashdown  175 
V.  Young  324 
Stillwell  V.  Adams                58,  143,  148 
V.  Miles  376 
Stinson  v.  Pickering  452 
V.  Prescott  212 
St.  John  V.  St.  John  216 
St.  John's  Parish  v.  Bronson  61 
St.  Joseph's  Academy  v.  Augus- 
tine 338 
St.  Nicholas  v.  St.  Bodolph  457 
Stock  V.  McAvoy  272 
Stocken  v.  Stocken  238 
Stocker  v.  Brockelbank  471 
Stockley  v.  Goodwin  464 
Stockton  V.  Farley  68 
V.  Wooley  206 
Stoddard  v.  Treadwell  473 
Stokes  V.  Brown  435 
V.  Hatcher  419 
V.  Shannon  148 
Stone  V.  Dennis  414 
I'.  Dennison  443 
V.  Dorrett  300,  316 
V.  Hills  491 
V.  McNair  61 


V.  Strode  21 

Strohl  V.  Levan  263 

Strong  V.  Beroujon  S43 

V.  Birchard  303 

V.  Foote  413 

V.  Moe  338,  360 

V.  Smith  83 

Stroop  V.  Swarts  76 

Strother  u.  Law  95 

Stroup  V.  State  311,  377 

Strouse  v.  Drennan  361 

Stuart  V.  Baker  446 

V.  Lord  Kirkwall  134 

Stubb  V.  Dixon  237 

Stuckey  v.  Mathes  18 

Studwell  I'.  Sliapter  425 

Stumpf  V.  Stnmpf  137 

Stumps  I'.  Kelley  450 

Stupp  V.  Holmes  451,  453 

Sturgis  V.  Champneys  85 

V.  Corp  131 

Sturtevant  v.  Starin  69 

Stutely  V.  Harrison  307 

SuddeVth  v.  McCombs  353 

SulUvan  v.  Blackwell  388 

V.  India  Man.  Co.  492 

V.  Sullivan  24,  63 

Sullivan's  Case  305 

Summer  v.  Howard  361 

Summers  (•.  Howard  385 

Sumner  v.  Conant  94 

V.  Sebec  267  a 

Sutfin  V.  People  279 

Sutherland  v   Goff  843 

Sutphen  v.  Fowler  368 

Sutton  V.  Aiken  146 

V.  Chetwynd  174 


Ixx 


TABLE   OF   CASES. 


Section 


Sutton  y.  Huffman 

261 

V.  Nichols 

452 

V.  Warren 

16 

Swafford  v.  Ferguson 

405, 

409 

Swain  v.  Duane 

117 

V.  Fidelity  lus.  Co. 

452 

V.  Tyler 

241 

Swan  V.  Dent 

U2 

382 

V.  Wiswall 

94 

Swartwout  v.  Oaks 

295, 

353 

V.  Swartwout 

318 

Swartz  V.  Hazlett 

269 

Swasey  v.  Antram 

166, 

1(39 

V.  Vanderheyden 

414 

Sweet  V.  Sweet 

316 

Sweetwater  Co.  v.  Glover 

468 

Swift,  Re 

316 

V.  Bennett 

414 

V.  Kelly 

24 

V.  Wennian 

221 

Swindall  i;.  Swindall 

854 

Swing  V.  VVoodrufi 

58 

Switzer  v.  Switzer 

218 

Sword  V.  Keith 

251 

473 

Sykes  v.  Chadwick 

190 

V.  Dixon 

469 

,487 

V.  Law  lor 

258 

Sym's  Case 

88 

T.  V.  D.  19 

V.  M.  19 

Taff  V.  Hosmer  307 

Taft  V.  Sergeant  435 

Talbot  V.  Earl  of  Shrewsbury  235,  334 

V.  Hunt  226 

V.  Marshfield  163 

V.  Provine  448 

Tallmadge  v.  Grannis  89 

Tallman  v.  Jones  167 

Tally  V.  Heffner  7 

Tanham  v.  Nicholson  271 

Tanner  v.  Skinner  238,  354,  372 

Tarbell  v.  Tarbell  173 

Tarble,  Matter  of  419 

Tarrant  v.  Webb  492 

Tate  V.  Pene  225 

V.  Tate  445 

Tatterson  v.  Suffolk  Man.  Co.  458 

Tatum  V.  Holliday  385 

Taunton  v.  Plymouth  267  a 

Tawney  »".  Crowther  179 

Taylor,  Re  299,  300,  .306 

In  re  247,  249 

V.  Brewer  473 

V.  Croker  402 

V.  Dansby  402 

V.  Glanville  138 

V.  Green  76 


Section 

Taylor  v.  Hite  347,  352 

V.  Jeter  230 

17.  Kilgore  343 

V.  I'hilips  357 

V.  Slielton  64 

V.  Staples  270 

V.  Stone  124 

V.  Taylor  388 

Teal  V.  Sevier  2.32 

Tealie  v.  Hoyte  386 

Teasd.ale  v.  Braithwaite  178 

Tebbets  v.  Hapgood  63 

Tebbs  V.  Carpenter  352 

Teller  v.  Bisliop  187,  188 

Temple  v.  Hawley  399 

Templeton  v.  Stratton  237 

Tenant  v.  Stoney  124 

Tenbrook  v.  M'Colm  320 

Tennant  v.  Stoney  124 

Tennessee  Hospital  v.  Fuqua  367 

Tenney  v.  Evans  344,  351 

Terry  v.  Belcher  53 

V.  Dayton  272 

V.  Hutchinson  261 

V.  McClintock  435,  438 

V.  Tuttle  363 

Terry's  Appeal  212 

Thacher  v.  Dinsmore  343 

V.  Phinney  89 

Thacker  v.  Henderson  347 

Thackray's  Appeal  350 

Thayer  v.  Gould  93 

Thing  V.  Libbey  414,  435 

Thoenberger  v.  Zook  94 

Thomas,  In  re  ■  304,  306 

V.  Bennett  343 

V.  Burrus  316 

V.  Dike  443,  449 

V.  Harkness  127,  190 

V.  Tiiomas  61,  237 

V.  Williams  366,  443,  464,  473 

V.  Wood  92 

Thomasson  v.  Boyd  435 

Thompson  v.  Boardman  321,  350 

v.  Brown  356 

V.  Dorsey  241 

V.  Feagin  188 

V.  Gaillard  439 

V.  Hamilton  407 

V.  Harvey  68 

V.  Howard  260 

V.  Ketcham  393 

V.  Lay  435 

V.  McKusick  123 

V.  Ross  261 

V.  Strickland  437 

V.  Thompson  61 

V.  Weller  148 

V.  Young  261 

Thomson  v.  Davenport  481 

V.  Thomson  290 


TABLE   OF   CASES. 


Ixxi 


Section 

Thome  v.  Dillingliara  77 

V.  Kathan  06 

Thornton  i'.  Grange  273 

V.  McGrath  361 

Tliorp  V.  Batcman  27o 

Thorpe  v.  Shapleigh  66,  71 

Thrall  v.  Wright  4r2 

Throgmorton  i*.  Davis  77 

Thrupp  V.  Fielder  436 

Thrustout  V.  Coppin  87 

Thurlow  V.  Gilmore  433 
Thurston  v.  Holbrook's  Estate         308 

Tibbs  V.  Allen  453 

V.  Brown  77 

Tifft  V.  Tifft  263,  423 

Tillinghast  v.  Holbrook  409 

Tillman  v.  Shackleton  164 

V.  Tillman  92 

Tillotson  V.  M'Crillis  268 

Tillotsons,  Tn  re  303 

Tiltoii  V.  Russell  413 

Timmins  v.  Lacy  225 

Timmons  v.  Tiramons  449 

Tinsley  v.  Roll  117 

Tipping  V.  Tipping  208 

Tipton  V.  Tipton  446 

Tllexan  v.  Wilson  208 

Tobey  v.  Smith  58 

I'.  Wood  437 

Tobin  V.  Addison  343 

V.  Crawford  489 

Todd  V.  Clapp  109,  437 

V.  Kerrieh  458 

V.  Lee  143,  164,  165 

Toland  v.  Stevenson  273 

Toler  V.  Slater  90 

Tomkins  v.  Tomkins  241 

Tompkins  v.  Tompkins  238 

Tong  V.  Marvin  304 

Tooke  V.  Newman  145 

Torrens  v.  Campbell  308 

Torrington  v.  Norwich  251 

Torry  v.  Black  343,  350 

V.  Frazer  353 

Totten's  Appeal  843 

Tourville  v.  Pierson  94 

Towle  V.  Swasey  200 

V.  Towle  118,  189 

Towne  v.  Wiley  424 

Townsend  v.  Burnham  241 

V.  Cox  451 

V.  Downer  417 

V.  Kendall  328,  333 

V.  Tallant  324 

Tracy  v.  Keith  58 

Trader  v.  Lowe  150,  389 

Trapnall  v.  State  Bank  407 

Trask  i\  Stone  450 

Traver  v.  Eighth  Avenue  R.  262 

Tre main's  Case  235,  340 

Tremont  v.  Mount  Desert  269 


Section 
Trenton  Banking  Co.  v.  Woodruff  123 
Trevor  v.  Trevor  \i<2 

Trieber  v.  Stover  167,  108 


Trimble  v.  Dodd 

238,  375 

Tritt  V.  Colwell 

83 

Tritt's  Adni'r  v.  Caldwell's  Adm'r     84 

Trotman  v.  Dunn 

462 

Troutbeck  ;>.  Boughey 

105,  100 

Trowbridge  v.  Carlin 

44 

Troy  V.  Ellcrbe 

308 

Trueblood  v.  Trueblood 

406 

Trueman  v.  Loder 

489 

Trull  v.  Eastman 

272 

Truss  V.  Old                          321 

843,  350 

Tubb  V.  Harrison 

237,  273 

Tubbs  V.  Gatewood 

94 

Tucker  v.  Andrews 

181 

V.  Bean 

448,  452 

V.  Dabbs 

452 

V.  Ma  gee 

457 

V.  McKee 

337 

V.  Moreland                  407 

439,  440 

Tucker's  Appeal 

194 

Tudor  V.  Samyne 

88 

Tuel  V.  Wilson 

490 

Tugman  v.  Hopkins 

106,  482 

Tugwell  v.  Scott 

281 

TuUett  V.  Armstrong  87,  103, 

107,  110, 

134,  139 

Tune  r.  Cooper 

82 

Tunison  v.  Chambly 

437,  439 

Tunks  V.  Grover 

162 

Tupper  V.  Caldwell 

412 

Turberville  v.  Stampe 

493 

V.  Whitehouse 

413 

Turner,  In  re 

305 

V.  Collins 

271 

V.  Cook 

53 

V.  Crane 

83 

V.  Jenkins 

452 

V.  Mason 

462 

V.  Meyers 

18 

V.  Robinson 

462,  473 

I'.  Turner 

240 

V.  Vaughan 

279 

Turner's  (Sir  Edward)  Case 

87,88 

Turnley  v.  Hooper 

180 

Turpin  v.  Turpin                401 

402,  407 

Turtle  V.  Muncy 

80 

Tuttle  V.  Chicago 

77 

I'.  Hoag 

166,  168 

V.  Holland 

64 

Tweedale  v.  Tweedale 

890 

Tyler  v.  Burringtoa 

273 

V.  Lake 

105 

V.  Revnolds 

232 

V.  Tyler 

394 

Tyrrell  v.  Hope 

105 

Tj-rrell's  Case 

101 

Tyson  v.  Latrobe 

351 

V.  Sanderson 

354,  368 

Ixxii 


TABLE  OF  CASES. 


u. 

Section 

U.  V.  J.  19 

Ulil  v.  Commonwealth  60 

Ulirig  V.  Horstman  164,  1G(J 

Underhill  v.  Dennis  304,  305 

V.  Morgan  189 

Underwood  v.  Brockman  343 

Unger  v.  Price  188 

United  States  v.  Bainbridge  252  a,  250, 

401,  419 

V.  Green  248 

V.  Metz  207  a 

187 

425 
269 
439 


United  States  Bank  v.  Ennis 
Unity  and  Banking  Association, 

In  re 
Updike  V.  Ten  Broeck 
Urban  v.  Grimes 


V. 

Vaden  v.  Hance 

Vail  V.  Meyer 

Van  Arnam  v.  Ayers 

Van  Aernam  v.  Van  Aernam 

Vanartsdalen  v.  Vanartsdalen 

Vance  v.  Smith 

Vanderburg  v.  Williamson 

Vanderlieyden  v.  Mallory 

V.  Vanderheyden 
Van  Deusen  v.  Brower 

V.  Van  Deusen 
Vandevoort  v.  Gould 
Vandevort's  Appeal 
Van  Donge  c.  Van  Donge 
Van  Dorn  v.  Young  252, 

Vane  v.  Vane 
Van  Epps  v.  Van  Deusen 
Van  Horn  v.  Freeman 
Van  Home,  Matter  of 
Van  Pelt  v.  Corwine 
Van  Schoyck  v.  Backus 
Vansittart  v.  Vansittart  216, 

Van  Valkenburg  v.  Watson 
Vanzant  v.  Davies 
Varick  v.  Edwards 
Varney  v.  Young  267, 

Vartie  v.  Underwood  94,  95, 

Vason  V.  Bell  174,  386, 

Vasse  V.  Smith 
Vaughan  v.  Parr  437, 

V.  Vanderstegen 
Velde  V.  Levering 
Vernon  v.  Marsh 

Vider  v.  Commajere  229, 

Villard  v.  Cliovin 
Villareal  v.  Mellish  245, 

Vincent  v.  Parker 

r.  Starks  343, 

V.  State 


272 
151 

41 
225 
290 
188 
366 
128 
375 
451 
390 
115 
435 
270 
457 
280 
390 
261 
388 
443 
2(J9 
251 
241 
272 
272 
268 
137 
388 
424 
439 
134 
335 
112 
232 
338 
287 

89 
3ti6 
308 


Section 

Vine  V.  Saunders  75 

Viser  v.  Scruggs  146,  148 

Visoneau  v.  Pegram  133 

Voessing  v.  Voessing  339,  374 

Von  Hoffman  v.  Ward  37 
Voorhees  v.  Presbyterian  Church     192 

Voorhies  v.  Voorliies  439,  440 

Voris  V.  State  366,  367 

Vossel  V.  Cole  261,  262 

VouUaire  v.  VouUaire  305 

Vreeland  v.  Ryno  80 

V.  Vreeland  118 

Vroom  V.  Marsh  23 


W. 

Wade,  Succession  of  53 

V.  Cantrell  189 

V.  Lobdell  372,  388 

V.  State  398 

V.  Thayer  490 

Wagener  v.  Bill  50 

AVagner  v.  Varner  232 

Wagstaff  L\  Smith  105 

Wailing  v.  Toll  413,  451 

Wainwright  v.  Straw  480 

Wait  V.  Bovee  193 

V.  Wait  221 

Waite  V.  North-Eastern  R.  R.  Co.    429 

Waithman  v.  Wakefield  61 

Wakefield  v.  Mackay  23 

Wakeman  v.  Slierman  436 

Waldo  V.  Goodsell  78 

Waldron,  Case  of  248 

Wales  V.  Newbould  155,  190 

Walke  V.  Moody  363 

Walkenhorst  v.  Lewis  407,  451 

Walker  v.  Armstrong  183 

V.  Beal  217 

V.  Browne  337 

V.  Chambers  457 

V.  Cronin  456,  487 

V.  Crowder  339 

V.  Davis  424 

V  Ellis  440,  442 

V.  Howard  7 

V.  Hull  452 

V.  Hunter  489 

V.  Laighton  63,  09,  237 

V.  Mulvean  448 

V.  Reamy  122 

V.  Simpson  61,  69 

r.  Stringfellow  217 

V.  Thomas  398 

V.  Veno  452 

V.  Walker  83,  218,  272 

Walker's  (Atme)  Matter  239 

Wall  V.  Rogers  104 

Wallace  v.  Brown  361 


TABLE  OF   CASES. 


Ixxiii 


Section 

Section 

Wallace  v.  De  Young 

488 

Water  Co.  v.  Ware 

461 

V.  Finberg 

143 

Waterman  v.  Wright 

373 

V.  Holmes 

352 

Waters  v.  Brogden 

489 

V.  Latham 

435,  439 

V.  Ebrai 

347 

V.  Lewis 

439 

Watkins,  Ex  parte 

301,  328 

V.  Morse 

424 

V.  Peck 

350 

V.  Wallace 

182 

V.  State 

324 

Waller  i\  Arniistead 

388 

Watson  V.  Broaddus 

124 

Wallingsford  v.  Allen 

123,  191 

V.  Cross 

414 

Wallis  r.  Bardwell 

350,  412 

V.  Hensel 

413 

V.  Campbell 

306,  377 

V.  Riskamire 

188 

V.  Day 

460 

V.  Robertson 

92 

Walsh  lu  Powers 

438 

V.  Stone 

353 

V.  Walley 

464,  475 

V.  Thurber    . 

137 

V.  Walsh 

452 

V.  Warnock 

305,  307 

Walter,  Ex  parte 

458 

Watson's  (Miss)  Case 

110 

V.  Walter 

120 

Watts  V.  Ball 

201 

Walton  V.  Broaddus 

117 

V.  Cook 

361 

V.  Erwin 

375 

V.  Steele 

238 

Wanibold  v.  Vick 

252  a 

Waul  V.  Kirkman 

7,59 

Wann  v.  People 

367,  376 

Way  V.  Peck 

146,  148 

Waples  i\  Hastings 

400 

Wayland  v.  Elkins 

490 

Ward  V.  Dulaney 

18 

Waymire  v.  Jetmore 

18 

V.  Evans 

480 

Weaver  v.  Carpenter 

405,  406,  439 

V.  Roper 

248,  332 

V.  Halsey 

462 

V.  Shallet 

188 

V.  Jones 

405,  446 

V.  Thompson 

200 

V.  Thornton 

324 

Warde  i'.  Warde 

47,246,247 

Webb  V.  Cole 

461,  488 

Warden  v.  Jones 

175 

V.  England 

457,471 

Wardlaw  ik  Gray 

388 

Webb's  Estate 

7 

Wardle  v.  Claxton 

105 

Webber  ;;.  Spannhake 

61 

Wardwell  v.  Wardwell 

290,  299 

Webster  v.  Bebinger 

386 

Ware  v.  Brush 

439 

V.  Conley 

351 

V.  Cartledge 

431 

V.  Hildreth 

154 

V.  Coleman 

303 

Weed  V.  Beebe 

438 

V.  Gardner 

186 

V.  Burt 

472 

V.  Polhill 

347,357 

V.  Ellis 

343 

V.  Ware 

83,  313,  352 

Weed  Sewing  Machine  Co.  v.  Emer- 

Waring, In  re 

399 

son 

94 

V.  Darnall 

352 

Weeks  v.  Holmes 

252  a,  260 

V.  Waring 

45,46 

V.  Leighton 

268,  443 

Warlick  v.  White 

225 

V.  Merrow 

241 

Warner  v.  Crouch 

94 

Weems  v.  Bryan 

89 

V.  Erie  R.  R.  Co. 

492 

Weger  v.  Penn.  R.  R.  Co. 

492 

V.  Heiden 

61 

Weisger  v.  Graham 

489 

V.  Wilson 

308 

Weisker  v.  Lowenthal 

64 

Warren,  Ex  parte 

293 

Welch,  Re 

249 

V.  Haley 

112 

V.  Burris 

337,  339 

i».  Halsey 

124 

1-.  Welch 

407 

V.  Hofer 

3-29 

Welch's  Appeal 

237 

V.  Jennison 

203 

Welchman  v.  Sturgis 

473 

V.  Ranney 

190 

Weld  V.  Walker 

199 

Warrender  v.  Warrender 

216,  218 

Well's  Estate,  In  re 

281 

Warwick  v.  Bruce 

432 

Wellborn  v.  Weaver 

77 

V.  Cooper 

402 

Weller  v.  Baker 

89 

V.  Hawkins 

105 

V.  Suggett 

329 

Washband  v.  Washband 

402 

Wellesley  v.  Duke  of  Beaufort       237, 

Washburn  v.  Hale 

80 

238, 

239,  246,  288 

V.  Nashville,  &c.  R.  R 

Co.         492 

V.  Wellesley 

235,  246 

V.  Sproat 

203 

Wells  V.  Chaffin 

364 

Waterbury  v.  Netherland 

206 

V.  McCall 

129 

Ixxiv 


TABLE   OF  CASES. 


Wells  V.  Perkins 

V.  Smith 

V.  Tliorman 

V.  Tvler 

V.  Wells 
Wendell's  Case 
Wennall  v.  Adney 
Wert  V.  Strouse 
West  V.  Errissey 

V.  Forsythe 

V.  Gregg 

V.  Howard 

V.  Penny 
Westbroolc  v.  Comstock 
AVesterman  v.  Westerman 
Westervelt  ?'.  Gregg 
Wcstgate  V.  Munroe 
Westmeath  v.  Westmeath 
Weston  V.  Stewart 
Westwick  v.  Tlieodor 
Wharton  v.  Mackenzie 
Wheaton  v.  East 

V.  Phillips 
Wheeler  v.  Ahrenbeak 

V.  Hotchkiss 
Wheeling  v.  Trowbridge 
Wheelwright  v.  Greer 
Wheidale  v.  Partridge 
Wliichcote  v  Lyle's  Ex'rs 
Whipp  V.  State 
Whipple  V.  Dow 

V.  Giles 
Whitaker's  Case 
Whitcoinb  v.  Barre 

V.  Josl^'n 
White  V.  Bayley 

V.  Bettis 

V.  Branch 

V.  Campbell 

V.  Cox 

V.  Dance 

V.  Flora 

t'.  Henry 

V.  Herrick 

V.  Hildreth 

V.  Izelin 

V.  McNett 

V.  Murtland 

V.  Nesbit 

V.  Oeland 

V.  Palmer 

V.  Parker 

V.  Pomeroy 

V.  Ross 

V.  Story 
White's  Appeal 
Whitehead  v.  Jones 
Whitfield,  Ex  parte 

V.  Hales 

IK  Lord  Le  Despencer 
Whiting  V.  Dewey 


Section 
273 
153 
136 
8;3 
391 
•  311 
4G8 
261 
182 

316,  319 
412 
175 

407,  435 
385 
53,  181 
114 
143 
216 
343 
457 

411,  413 

405,  439 
167 

407,  452 
221 
77 
279 
357 
399 
48 

239,  269 

61 

313 

77,  78 

425 

465 

188 

446 

262 

399 

200 

438 

252  a,  267  a 

399 

154,  203 
386 
143 

261.  262 
353 
162 
308 
348,  352,  353,  380 
304 
225 
143 
155 
385 
305 
246 
483 
351 


Section 

Whiting  V.  Earle  252  a,  267 

V.  Stevens  94 

Whitingham's  Case  399 

Whitley  v.  Murray  473 

Whitman  v.  Delano  75 

Wiiitmarsh  v.  Robertson  87 

Whitmore  v.  Whitcomb  457 

Whitney  i'.  Beckwith  162 

V.  Dutch  401,  406,  408,  435 

V.  AVhitney  316,  372 

Wliittlesey  v.  Fuller  193 

Whitworth  r.  Carter  68 

Whywall  v.  Champion  408 

Wickersham  i\  Timraons  451 

Wickiser  v.  Cook  389 

Widgery  v.  Tepper  204 

Wieman  r.  Anderson  164 

Wier  V.  Still  23 

Wiggins  1-.  Keizer  279 

Wiglitman  v.  Wightman  16 

Wigmore  v.  Jay  492 

Wilburn  v.  McCalley  129 

Wilcox  V.  Roath  435 

r.  Todd  152 

Wilder  v.  Aldrich  189 

I'.  Ember  450 

Wildman  v.  Wildman  83 

Wileck's  Settlement,  Re  281 

Wiley  V.  Gray  188 

Wilhelra  V.  Hardman  413,  443 

Wilie  V.  Brooks  446 

Wilkes  V.  Rogers  239 

Wilkinson  v.  Charlesworth  83 

V.  Gibson  221 

V.  Parry  394 

V.  Wilkinson  154,  281 

t'.  Wright  198 

Willard  v.  Eastham  136,  139,  158 

V.  Fairbanks  343 

V.  Pinard  478 

V.  Stone  402 

V.  Willard  23 

Willet  V.  Commonwealth  395 

William  &  Mary  College  v.  Powell    188 

Williams,  £'x7;a?-^e  248 

r.  Amory  89 

i\  Avery  124 

V.  Baker  96 

V.  Barnes  269 

i\  Brown  405 

V.  Carle  181 

V.  Chambers  473 

V.  Clough  492 

V.  Cranstoun  482 

V.  Duncan  363 

V.  Finch  457 

V.  Harrison  368,  404 

V.  Heirs  397 

V.  Hugunin  143,  148, 157 

V.  Hutchinson  261,  262,  273 

V.  Jeter  463 


TABLE   OF   CASES. 


Ixxv 


Section 

Williams  v.  King 

120,  14(3 

V.  Mabee 

440 

V.  Maull 

124,  191 

V.  McGahay 

67 

V.  McGrade 

no 

V.  Moor 

401,  406,  487 

V.  Morpjan 

8'J 

V.  Morris 

4::!7 

V.  Morton 

361,  367,  m9 

V.  Powell 

389 

V.  Prince 

67 

V.  State 

23,  395 

V.  Wiggand 

363 

V.  Wilbur 

151 

V.  Williams 

26 

Williams'  Case 

204,  356 

Williamson  v.  Codrir 

gton                  281 

V.  Parisien 

21 

V.  Warren 

361 

V.  Williams 

18 

Willick  V.  Taggart 

352 

Willis  V.  Childe 

471 

V.  Fox 

350,  372 

V.  Snelling 

82 

V.  Twombly 

409,  437 

Williston  V.  White 

379 

Wills  V.  Sayers 

105 

Wilis'  Appeal 

350,  352 

Wilson  V.  Breeding 

198 

V.  Ford 

61 

V.  Goit 

77 

I'.  Jones 

136,  143 

V.  Kohllieim 

270 

V.  Loomis 

169 

V.  McLaughlin 

482 

V.  McMillan 

252  a,  270 

t'.  Merry 

492 

V.  Peverly 

491 

V.  Timiman 

489 

V.  Wilson 

57,  216,  239,  269, 

324 
Wilt  7-.  Vickers  259,  262 

Wilthaus  V.  Ludicus  164 

Wilton  r.  Hill  134 

V.  Middlesex  U.  258 

Wimberley  r.  Jones  438 
Wiiicliester  v.  Thayer                402,  408 

Windland  v.  Deeds  273 

Windsor  v.  Bell  155 

1-.  McAtee  316 

Wing  V.  Goodman  53 

17.  Rowe  888 

V.  Taylor  16 

Winn  V.  Sprague  268 

Winslow  V.  Crocker  82 

V.  Winslow  343 

Winslowe  v.  Tighe  87 

Winsmore  v.  Greenbank  259 

Winstell  V.  Ilehl  90 

Winston  v.  Newcoraen  237 

Winter  v.  Walter  120 


Section 

Wise  V.  Norton  313 

V.  Wilson  462 

Wiser  v.  Blachly  366 

V.  Lockwood  18 

Wishard  v.  Medaris  251 

Withers  v.  Hickman  869 

Witman'sApi)cal  388 

Witsell  V.  Charleston  129,  137 

Witty  r.  Marshall  235 
Wodell  V.  Coggeshall      251,  260, 267  a, 

268 

Wolfe  V.  Howes  474 

Wollaston  i'.  Tribe  174 

Wolsey  V.  Lake  Shore  R.  492 

Womack  v.  Austin  388 

V.  Womack  446 

Wood,  Re  324,  389,  439 

r.  Adams  30 

V.  Chetwood  53 

V.  Corcoran  268 

V.  Dovvnes  388 

V.  Gale  835 

V.  Gills  241 

V.  O'Kelly  61 

V.  Siiurtleff  53 

V.  Stafford  318 

V.  State  261 

V.  Terry  ,      58,  97 

V.  Truax  351,  444 

V.  Washburn  368 

V.  Wood  120,  122,  248 

Woodbeck  v.  Havens  162 

Woodbury  v.  Hammond  372,  377 

Woodcock  V.  Reed  164 

Woodin  V.  Burford  489 

Woodman  r.  Chapman  56 

Woodmansie  v.  Woodmansie  372 

Woodmeston  v.  Walker  103 

Woodruff  r.  Logan  419 

Woodruffe  v.  Cox  86 

Woodrum  v.  Kirkpatrick  124 

Woods  r.  Boots  347 

V.  Mather  363 

V.  Simmons  221 

Woodward,  Ex  parte  247 

V.  Anderson  261 

?'.  Barnes  63,  64,  65 

V.  Seaver  150 

V.  Wilson  151 

Woodward's  Appeal  347 

Woodworth  ?-.  Spring  328 

Woolf  V.  Pemberton  296,  450 

Woolscombe,  Ex  parte  320 

Woolsey  v.  Brown  145 

Woolston's  Appeal  188 

Worcester  v.  Eaton  440 

V.  Marchant  237,  260,  273 

Word  V.  Vance  425 

Worrall  v.  Jacob  216 

Worrell's  Appeal  353,  3b9 

Worth  V.  York  118,  11^ 


Ixxvi 


TABLE   OF    CASES. 


Worthington  v.  Cooke 

V.  Curtis 

V.  Dunkin 
Wortnian  v.  Price 
Worts  V.  Cubitt 
Wotton  V.  Hale 
Wray  v.  Cox 

V.  West 

V.  Wray 
Wren  v.  Gayden 

V.  Kirton 
Wright  V.  Arnold 

V.  Brown 

V.  Donnell 

V.  Dresser 

V.  Fearis 

V.  Germain 

V.  Haskell 

V.  Hicks 

V.  Kerr 

V.  Leonard 

V.  Maiden  &  Melrose  R. 

V.  Naylor 

V.  Sadler 

V.  Steele 

V.  Vanderplank 

V.  Wilcox 

!!.  Wright 
Wyatt  V.  Simpson 
Wych  V.  Packington 
Wyckoff  t'.  Boggs 

V.  Hulse 
Wyman  v.  Adams 

V.  Hooper 
Wyngert  v.  Norton 
Wynn  v.  Benbury 


Section 
150,  158 
253 
361 
155 
281 
90,95 

67 
457 

67 
324 
352 
389 
150, 457 
273 
146 
205 
433,  439 
475 
225 

75 
425 
429 
333 
193 
437 
271 
491 
191,  298 

89 
388 

30 
853 
414 
386 
464 
348,  384 


Co 


Wynn  v.  Bryce 
Wythe  V.  Smith 


Ximines  v.  Smith 


Yager  v.  Merkle 
Yale  V.  Dederer 
Yates  V.  Lyon 

V.  Squires 
Yeager's  Appeal 
Yeatman  v.  Yeatman 
Yeaton  v.  Yeatou 
Yerger  v.  Jones 
Yopst  V.  Yopst 
Young  V.  Fowler 

V.  Graff 

V.  Lorain 

V.  IMcKee 

V.  Paul 

V.  Tarbell 

V.  Young 
Younge  v.  Younge 
Yourse  v.  Norcross 


Z. 


Section 
334 
114 


190 


143,  145,  152 
404 
491 
872 

86 
183 
385 

81 
394 
137 
315 
488 

58 

350 

124,  317 

449 

96,  405 


Zimmerman  v.  Erhard  169 

Zouch  V.  Parsons   401, 405, 406, 409,  423 
Zulkee  v.  Wing  478 


THE    DOMESTIC    RELATIONS. 


THE    DOMESTIC    RELATIONS. 


PAET  I. 

INTRODUCTORY  CHAPTER. 


§  1.  Domestic  Relations  defined;  Earlier  Writers.  —  The  law 
of  the  domestic  relations  is  the  law  of  the  household  or  fam- 
ily, as  distinguished  from  that  of  individuals  in  the  external 
concerns  of  life.  Five  leading  topics  are  embraced  under 
this  head :  First,  husband  and  wife.  Second,  parent  and 
child.  Third,  guardian  and  ward.  Fourth,  infancy.  Fifth, 
master  and  servant.  These  will  be  successively  considered 
in  the  present  treatise. 

Our  general  rule  of  classification  is  borrowed  from  Kent.^ 
But  other  writers  on  the  domestic  relations  have  analyzed 
their  subject  differently.  Blackstone  omits  infancy  as  a  topic 
distinct  from  parent  and  child,  and  hence  makes  but  four 
divisions.'^  The  same  is  true  of  Reeve.^  Such  a  method  of 
treatment  answered  the  purpose  of  these  writers  sufficiently ; 
but  since  their  day  the  topic  of  guardian  and  ward  has  grown 
into  importance,  giving  occasion  to  the  discussion  of  many 
principles  which  apply  as  well  to  parent  and  child,  for  which 
reason  it  is  found  better  to  draw  off  from  both  what  is  peculiar 
to  neither,  and  make  the  new  heading  of  infancy.  Bingham, 
on  the  other  hand,  wrote  a  treatise  in  which  the  only  divi- 
sions observed  were  those  of  infancy  and  coverture.'*  This 
plan  would  be  found  defective  for  a  work  like  the  present ; 

1  2  Kent  Com.  Lee.  26-32.  8  Reeve's  Dom.  Rel. 

2  1  Bl.  Cora.  Lee.  14-17.  *  Bing.  Inf.  &  Gov. 

3 


§  1  THE   DOMESTIC   RELATIONS.  [PART   I. 

for,  in  the  first  place,  the  subject  of  master  and  servant  must 
be  ignored  altogether  ;  and,  secondly,  that  of  guardian  and 
ward  cannot  receive  the  distinctive  treatment  it  deserves. 
Besides,  the  very  juxtaposition  of  two  such  words  as  "  iu- 
fanc}'  "  and  "  coverture  "  suggests  a  similitude  neither  flat- 
tering to  woman,  nor  in  accordance  with  the  present  law  of 
husband  and  wife,  as  will  fully  appear  hereafter.  Fraser, 
who  writes  for  readers  of  the  civil,  or  rather  the  Scotch,  law, 
while  otherwise  classifying  like  Blackstone,  adds  the  relation 
of  master  and  apprentice  to  that  of  master  and  servant,^  in 
which  respect  his  example  is  not  to  be  imitated  by  common- 
law  writers.  Uj^on  the  whole,  therefore,  the  rule  of  Kent 
seems  to  us  the  preferable  one,  as  being  concise,  comprehen- 
sive, and  well  adapted  to  the  present  state  of  English  and 
American  law. 

It  is  curious  to  notice  that  all  of  these  writers  —  and  there 
are  none  else  of  standard  authorit}'  who  profess  to  occup}-  the 
whole  subject  —  plunge  at  once  into  the  law  of  their  leading 
topics  with  nothing  by  way  of  general  introduction  ;  nothing 
to  indicate  to  the  reader  whither  they  propose  leading  him. 
Not  one  has  attempted  to  draw  the  chart  which  shall  deter- 
mine his  legal  bearings.  Nor  is  the  definition  of  the  term 
"domestic  relations  "  to  be  found  in  the  books  above  specified. 
Indeed  were  it  not  for  the  title-page  of  Reeve's  work,  and  a 
few  casual  passages  in  Kent's  Commentaries,  where  the  same 
words  occur,  one  might  ask  how  the  expression  "  domestic 
relations  "  crept  into  general  use  among  lawyers.  Blackstone 
uses  the  terms  "  private  economical  relations,"'  and  "  relations 
in  private  life  ;  "  words  which  of  themselves  would  seem  to 
give  a  much  wider  scope  to  our  subject.^  But  Blackstone 
at  all  times  manifests  a  strong  predilection  for  independent 
analysis,  with  special  reference,  moreover,  to  the  arrangement 
of  his  course  of  lectures  ;  and  in  this  particular  instance  the 
context,  as  well  as  the   classification,  seems  to  show  that 

1  Fras.  Dom.  TJel.  (Scotcb).    2  vols,  stanrling    in    the    public    relations   of 

2  1  Bl.  Com.  Lee.  14.  The  writer  marrislrates  and  people;  and  tlie  word 
had  just  finislied  discussing  at  length  "private"  marks  the  desired  con- 
the  rights  and  duties  of  persons  as  trast. 

4 


PART   I.]  INTRODUCTORY.  §  2 

"  domestic  relations  "  was  the  topic  in  his  mind.  Fraser's 
complete  title  is  "  personal  and  domestic  relations."  Not- 
Avithstanding  all  this  it  is  certain  that  "domestic  relations" 
is  now  the  well-sanctioned  title  of  that  law  which  erabi-aces 
the  topics  specified  by  us  at  the  outset,  as  those  who  exam- 
ine the  digests  of  reported  eases  and  the  codes  of  our  leading 
States  can  testify.  To  legal  precision  in  this  respect,  Reeve 
certainly  contributed  not  a  little  by  the  clioice  of  a  suitable 
title  for  his  volume,  so  long  the  standard  text-book  for  Eng- 
lish and  American  students. 

§  2.  Plan  of  Classification,  &c.  —  Starting,  then,  with  a  defi- 
nition simple,  natural,  and  well  adapted  to  the  materials  in 
hand,  we  next  ask  what  are  the  proper  limitations  of  our 
subject?  what  should  a  text-book  on  the  English  and  Amer- 
ican law  of  the  domestic  relations  comprise  ?  (1.)  As  to  three 
of  our  topics,  —  husband  and  wife,  parent  and  child,  and 
infancy,  —  the  question  is  easil}^  answered.  Their  very  names 
convey  a  distinct  significance  even  to  the  mind  of  the  unpro- 
fessional reader.  Except  it  be  in  the  meaning  of  the  word 
"  infancy,"  which  the  law  applies  to  all  persons  not  arrived 
at  majority,  but  popular  usage  restricts  to  the  period  of  help- 
lessness, all  intelligent  persons  agree  in  the  general  use  of 
the  terms  we  have  employed.  And  so  strong  are  the  moral 
obligations  which  attend  marriage  and  the  training  of  off- 
spring, so  intimately  blended  with  the  welfare  and  happiness 
of  mankind  are  the  ties  of  wife  and  child,  that  scarcelj^  any 
one  grows  up  without  some  knowledge  of  the  general  prin- 
ciples of  law  applicable  to  these  topics,  and  particularly  of 
such  of  the  lights  and  duties  as  concern  the  person  rather 
than  the  pro[)erty.  For  positive  law  but  enforces  the  man- 
dates of  the  law  of  nature,  and  develops  rather  than  creates 
a  system. 

(2.)  Yet  even  here  it  should  be  observed  by  the  professional 
reader  that  the  term  "  husband  and  wife  "  is  acquiring  at  law 
a  more  limited  and  technical  sense  than  formerl}'.  The  idea 
of  marriage  involves  both  the  entrance  into  the  relation  and 
the  relation  itself;  and  akin  to  marriage  celebration  is  the 
dissolution  of  marriage  by  divorce,  or  what  we  may  term  our 

5 


§  2  THE    DOMESTIC    RELATIONS.  [PART   I. 

recognized  legal  exit  from  the  relation.  Hence  marriage  and 
divorce  constitute  an  important  topic  by  themselves ;  and  we 
find  treatises  which  profess  to  deal  with  these  alone.  Mar- 
riage and  divorce,  moreover,  have  in  England  pertained  until 
quite  recently  to  the  peculiar  jurisdiction  of  ecclesiastical 
courts,  constituting  what  is  termed  an  ecclesiastical  law.^ 
The  rights  and  duties  which  grow  out  of  the  marriage  rela- 
tion, on  the  other  hand,  still  remain  for  separate  discussion : 
the  consequence  of  the  celebration ;  the  effect  of  marriage 
upon  the  property  of  each  ;  the  personal  status  of  the  par- 
ties, —  in  short,  what  new  legal  responsibilities  are  assumed, 
and  what  legal  privileges  are  gained  by  the  two  persons  who 
have  once  voluntarily  united  as  husl)and  and  wife.  It  is  to 
this  latter  subdivision,  rather  than  the  former,  that  the  title 
of  husband  and  wife  seems  at  the  present  day  to  apply. 
Reeve  devotes  but  a  brief  chapter  to  marriage  and  divorce. 
Kent  separates  the  subdivisions  completely,  applying  the 
title  of  husband  and  wife  as  above.  Yet  Blackstone,  writing 
before  either,  had  devoted  two-thirds  of  his  lecture  on  hus- 
band and  wife  to  the  treatment  of  marriage  and  divorce 
alone,  and  very  briefly  disposed  of  the  rights  and  disabilities 
of  the  marriage  union  under  the  same  general  heading.  The 
many  and  rapid  changes  to  which  the  entire  law  of  husband 
and  wife  has  been  latterly  subjected  ;  the  growth  of  divorce 
legislation  on  the  one  hand,  and  of  property  legislation  for 
married  women  on  the  other,  fully  justifies  a  subdivision  so 
important.  We  shall  subordinate,  then,  the  topic  of  mar- 
riage and  divorce  to  that  of  the  marriage  status,  following, 
in  this  respect,  the  modern  legal  usage  ;  at  the  same  time 
noting  that,  if  some  special  term  could  be  coined  to  distin- 
guish the  subdivision  husband  and  wife  from  that  general 
division  which  bears  the  same  name,  legal  analysis  would  be 
more  exact. 

(3.)  As  to  guardian  and  ward,  the  limitations  of  our  treatise 
are  not  so  easily  marked  out.  In  respect  of  the  domestic  re- 
lations, the  guardian  is  a  sort  of  temporary  parent,  created  by 

1  Burn,  Eccl.  Law ;  1  Bishop,  Mar.  &  Div.  5th  ed.  §§  48-G5. 

6 


PART   I.]  INTRODUCTORY.  §  2 

the  law,  to  supply  to  young  children  the  place  of  a  natural 
protector.  But  the  term  "guardian"  is  used  rather  indis- 
criminately in  these  days  with  reference  to  all  who  need  pro- 
tection at  the  law.  Thus  we  have  guardians  of  insane  persons; 
guardians  of  spendthrifts  ;  and  even  guardians  of  tiie  poor. 
Blackstone  treats  of  these  last  guardians  under  the  head  of 
public  relations  ;  and  certainly  they  do  not  fall  within  the 
clear  scope  of  private  or  domestic  relations.  Yet  the  legal 
principles  applicable  to  one  class  of  guardians  frequently  ex- 
tend as  well  to  all  others  ;  and  we  shall  hardly  expect  in 
these  pages  to  trace  with  distinctness  that  shadowy  line 
which  separates  the  temporar}^  parent  from  the  town  officer; 
nor  would  the  consulting  lawyer  expect  us  to  do  so.  Again, 
a  guardian's  duties  are  chiefly  with  respect  to  property  ;  and 
herein  they  so  nearly  resemble  those  of  testamentary  trustees 
that  one  frequently  finds  himself  gliding  unconsciously  from 
the  law  of  the  family  into  the  law  of  trusts. 

(4.)  With  the  last  topic  of  the  domestic  relations  —  that  of 
master  and  servant — the  rule  of  classification  becomes  even 
more  uncertain.  If  servants  connected  with  the  household 
were  alone  to  be  considered  in  a  treatise  upon  the  domestic 
relations,  the  modern  cases  would  be  simple  and  few  ;  but  no 
writer  has  presumed  to  limit  himself  to  such  narrow  bounds. 
In  former  centuries  this  relation  had  a  marked  significance. 
In  these  days  we  dislike  to  call  an}^  man  master.  The  recent 
abolition  of  slavery  in  the  United  States  has  wellnigh  removed 
all  traces  of  an  institution  known  to  the  ancient  Roman  em- 
pire; elsewhere  recognized  as  the  common  barbarian  accom- 
paniment of  barbarian  triumphs  ;  and  in  spirit,  if  not  in  the 
letter,  once  fastened  upon  the  common  law,  while  the  feudal 
system  lasted.  As  one  of  the  domestic  relations,  this  topic  of 
master  and  servant  is  of  little  present  importance  in  England 
or  America  ;  although  it  has  doubtless  an  existence.  In  its 
analogies,  however,  or  as  a  relation  sub  modo,  master  and  ser- 
vant has  features  which  the  courts  constantly  regard.  Appren- 
tices are,  without  much  violation  of  principle,  included  under 
this  head  ;  they  are  generall}^  bound  out  during  minority  and 
brought  up  in  families.    Clerks  are  not  so  readily  confined 

7 


§  3  THE   DOMESTIC    RELATIONS.  [PAIIT   I. 

within  the  circle  of  domestic  relations  as  formerly ;  and  the 
same  is  to  be  said  of  factors,  bailiffs,  and  stewards.  The  em- 
ployees of  a  corporation  are  frequently  designated  as  servants; 
so  are  laborers  generally.  But  it  cannot  be  denied  that  master 
and  servant  is  rather  a  repulsive  title,  and  fast  losing  favor  in 
this  republican  country ;  that  as  one  of  the  purely  domestic 
relations  it  rarely  attracts  attention;  and  that  in  sounding  its 
legal  depths,  one  often  loses  sight  of  his  landmarks,  and  finds 
himself  drifting  out  into  the  more  general  subject  of  principal 
and  agent. 

§  3.  General  Characteristics  of  the  La-w  of  Family.  —  Whether 
we  consult  the  facts  of  history  or  the  inspirations  of  human 
reason,  the  family  may  be  justly  pronounced  the  earliest  of  all 
social  institutions.  Man,  in  a  state  of  nature  and  alone,  was 
subject  to  no  civil  restrictions.  He  was  independent  of  all 
laws,  except  those  of  God.  But  when  man  united  with 
woman,  both  were  brought  under  certain  restraints  for  their 
mutual  well-being.  The  propagation  of  offspring  afforded 
the  only  means  whereby  society  could  hope  to  grow  into  a 
permanent  and  compact  system.  Hence  the  sexual  cravings 
of  nature  were  speedily  brought  under  wholesome  regula- 
tions ;  as  otherwise  the  human  race  must  have  perished  in 
the  cradle.  Natural  law,  or  the  teachings  of  a  Divine  Prov- 
idence, supplied  these  regulations.  Families  preceded  na- 
tions. These  families  at  first  lived  under  the  paternal 
government  of  the  person  who  was  their  patriarch  or  chief. 
But  as  they  increased,  they  likewise  divided  ;  their  interests 
became  conflicting,  and  hostilities  arose.  Hence  when  men 
came  afterwards  to  unite  for  their  common  defence,  they 
composed  a  national  body,  and  agreed  to  be  governed  by 
the  will  of  him  or  those  on  whom  they  had  conferred  author- 
ity. Thus  did  government  originate.  And  government,  for 
its  legitimate  purposes,  placed  restrictions  upon  the  governed ; 
which  restrictions  thenceforth  were  to  apply  to  individuals  in 
both  their  family  and  social  relations.^  But  the  law  of  the 
domestic  relations  is  nevertheless  older  than  that  of  civil 


1  See  Burlamaqui  Nat.  Law,  ch.  iv.  §§  G,  9. 

8 


PART   I.]  INTEODUCTOr.Y.  §  4 

society.  In  fact,  nations  tliemselves  are  often  regaidecl  as  so 
many  families ;  and  the  very  name  which  is  phiced  at  the 
head  of  this  work,  the  legishitor  constantly  applies  to  the 
public  concerns  of  his  own  country  as  contrasted  with  those 
of  foreign  governments. 

The  supremacy  of  the  law  of  family  should  not  be  forgotten. 
We  come  under  the  dominion  of  this  law  at  the  very  moment 
of  birth  ;  we  thus  continue  for  a  certain  period,  whether  we 
will  or  no.  Long  after  infancy  has  ceased,  the  general  obli- 
gations of  parent  and  child  may  continue  ;  for  these  last 
through  life.  Again  we  subject  ourselves  by  marriage  to  a 
law  of  family;  this  time  to  find  our  responsibilities  still  further 
enlarged.  And  although  the  voluntary  act  of  two  parties 
brings  them  within  the  law,  they  cannot  voluntarily  retreat 
when  so  minded.  To  an  unusual  extent,  therefore,  is  the  law 
of  family  above,  and  independent  of,  the  individual.  Society 
provides  the  home;  public  policy  fashions  the  system;  and 
it  remains  for  each  one  of  us  to  accustom  himself  to  rules 
which  are,  and  must  be,  arbitrarj^ 

So  is  the  law  of  family  universal  in  its  adaptation.  It  deals 
directly  with  the  individual.  Its  provisions  are  for  man  and 
woman ;  not  for  corporations  or  business  firms.  The  ties  of 
wife  and  child  are  for  all  classes  and  conditions  ;  neither  rank, 
wealth,  nor  social  influence  weighs  heavily  in  the  scales.  To 
ever}^  one  public  law  assigns  a  home  or  domicile  ;  and  this 
domicile  determines  not  only  the  status,  capacities,  and  rights 
of  the  person,  but  also  his  title  to  personal  property.  There 
is  the  political  domicile,  which  limits  the  exercise  of  political 
rights.  There  is  the  forensic  domicile,  upon  which  is  founded 
the  jurisdiction  of  the  courts.  There  is  the  civil  domicile, 
which  is  acquired  by  residence  and  continuance  in  a  certain 
place.  The  place  of  birth  determines  the  domicile  in  the  first 
instance  ;  and  one  continues  until  another  is  properly  chosen. 
The  domicile  of  the  wife  follows  that  of  the  husband  ;  the 
domicile  of  the  infant  may  be  changed  by  the  parent.  Thus 
does  the  law  of  domicile  conform  to  the  law  of  nature, 

§  4.  Law  of  Husband  and  Wife  now  in  a  Transition  State ; 
Various  Property  Schemes  stated.  —  The  most  interesting  and 


§  5  THE   DOMESTIC    RELATIONS.  [PART   I. 

important  of  the  domestic  relations  is  that  of  husband  and 
wife.  The  law  of  England  and  the  United  States,  on  this 
topic,  is  now  undergoing  a  remarkable  change  ;  and  so  un- 
settled are  its  principles  at  the  present  time,  witli  reference 
to  the  rights  and  obligations  of  the  married  pair,  that  the 
writer  has  felt  constrained  to  depart  somewhat  from  the  usual 
plan  of  law  treatises,  adopting  what  might  be  termed  a  con- 
secutive or  histoiical  arrangement  of  his  materials  ;  since 
otherwise  the  subject  would  furnish  to  the  reader's  mind  lit- 
tle else  than  a  series  of  unreconciled  contradictions.  To  show 
clearly  why  the  later  cases  conflict  with  the  earlier  will  at 
least  aid  the  future  legislator  and  jurist  in  their  efforts  to 
place  the  law  of  husband  and  wife  upon  a  firm  and  just  basis; 
and  meanwhile  afford  to  the  practising  lawyer  all  the  assist- 
ance which  he  can  reasonably  expect. 

This  confused  state  of  the  law  of  husband  and  wife  is 
exhibited  in  a  contest  still  going  on  between  two  opposing 
schemes  for  adjusting  the  property  rights  of  the  married 
parties.  The  one  is  the  common-law  scheme  ;  the  other  re- 
sembles that  of  the  civil  law.  The  former  is  at  the  basis  of 
our  jurisprudence,  English  and  American.  Tlie  latter  has 
had  a  powerful  influence  in  modern  times,  moulding  the  doc-^ 
trines  of  the  equity  tribunals  and  shaping  recent  legislation. 
Let  us  examine  these  schemes  separately,  and  afterwards  a 
third  or  intermediate  scheme,  known  as  that  of  communit3^ 

§5.  Common-Law  Property  Scheme. —  (1.)  The  common- 
law  scheme  makes  unity  in  the  marriage  relation  its  cardinal 
point.  But  to  secure  this  unity  the  law  starts  with  the 
assumption  that  the  wife's  legal  existence  becomes  suspended 
or  extinguished  during  the  marriage  state  ;  it  sacrifices  her 
property  interests,  and  places  her  almost  absolutely  within 
her  husband's  keeping,  so  far  as  her  civil  rights  are  con- 
cerned. Her  fortunes  pass  by  marriage  into  her  husband's 
hands,  for  temporary  or  permanent  enjoyment,  as  the  case 
may  be  ;  she  cannot  earn  for  herself,  nor,  in  general,  contract, 
sue,  or  be  sued  in  her  own  right ;  and  this,  because  she  is  not 
in  legal  contemplation  a  person.  The  husband  loses  little  or 
nothing  of  his  own  independence  by  marriage  ;  but  in  order 
10 


PART   I.]  INTRODUCTORY.  §  6 

to  distribute  the  matrimonial  burdens  with  some  approach  to 
equalit}',  the  hiw  com[)els  him  to  pay  debts  on  his  wife's 
account,  which  he  never  in  fact  contracted,  not  only  where 
she  is  held  to  be  his  agent  by  legal  implication,  but  whenever 
it  happens  that  she  has  brought  him  by  marriage  outstanding 
debts  without  the  corresponding  means  of  paying  them. 
Husband  and  wife  take  certain  interests  in  one  another's 
lands,  such  as  curtesy  and  dower,  which  l)ecome  consummate 
upon  survivorship.  In  general,  their  property  rights  are 
summarily  adjusted  by  the  law  with  reference  rather  to  pre- 
cision than  principle.  On  the  whole,  however,  the  advan- 
tages are  with  the  husband  ;  and  he  is  permitted  to  lord  it 
over  the  wife  with  a  somewhat  despotic  sway  ;  as  the  old 
title  of  this  subject  —  bar-on  and  feme  —  plainly  indicates. 
The  witty  observation  is  not  wholly  inappropriate  that,  in  the 
eye  of  the  common  law,  husband  and  wife  are  one  person, 
and  that  one  is  the  husband.^ 

§  6.  Civil-Law  Property  Scheme.  —  (2.)  The  civil-law 
scheme  paj^s  little  regard  to  the  theoretic  unity  of  a  married 
pair.  It  looks  rather  to  the  personal  independence  of  both 
husband  and  wife.  Each  is  to  be  protected  in  the  enjoyment 
of  property  rights.  In  the  most  polished  ages  of  Roman  juris- 
prudence we  find,  therefore,  that  husband  and  wife  were 
regarded  as  distinct  persons,  with  separate  rights,  and  capable 
of  holding  distinct  and  separate  estates.  The  wife  was  com- 
paratively free  from  all  civil  disabilities.  She  was  alone  respon- 
sible for  her  own  debts  ;  she  was  competent  to  sue  and  be  sued 
on  her  own  contracts  ;  nor  could  the  husband  subject  her  or 
her  property  to  any  liability  for  his  debts  or  engagements. ^ 

The  more  minute  details  of  the  common-law  scheme  of 
husband  and  wife  belong  to  the  main  portion  of  this  volume, 
and  need  not  here  be  anticipated.  Not  so,  however,  with  the 
civil-law  scheme  ;  and  we  proceed  to  elaborate  it  solnewhat 
further.  In  the  earlier  period  of  RomTan  law  the  marital 
power  of  the  husband  was  as  absolute  as  the  patria  potestas. 
But  before  the  time  of  the  Emperor  Justinian  it  had  assumed 

1  See  post,  Part  II.,  as  to  coverture  -  1  Burge,  Col.  &  For.  Laws,  202, 
doctrine.  263. 

11 


§  6  THE   DOMESTIC   PELATIOXS.  [PART  I. 

the  aspect  already  noticed  ;  in  wliirh  it  is  to  be  distinguished 
from  all  other  codes.  The  eommunio  bonorum,  which  is  to  he 
found  in  so  many  modern  systems  of  jurisprudence  whose 
l)asis  is  the  Roman  law,  treats  the  wife's  separate  property 
and  separate  rights  as  exceptional.  The  peculiarities  of 
the  civil  law  in  this  respect  may,  perhaps,  be  referred  to 
the  disuse  into  which  formal  rites  of  marriage  had  fallen. 
Formal  marriage  gave  to  husband  and  wife  a  communit}'^  of 
interest  in  each  other's  property.  But  marriage  per  usum,  or 
by  cohabitation  as  man  and  wife,  which  became  universally 
prevalent  in  later  times,  did  not  alter  the  status  of  the 
female :  she  still  remained  subject  to  her  father's  power. 
Hence  parties  united  in  a  marriage  per  iisum  acquired  no 
general  interest  in  one  another's  property,  but  only  an  inci- 
dental interest  in  certain  parts  of  it.  The  wife  brought  her 
dos ;  the  husband  his  antidos ;  in  all  other  property  each 
retained  the  rights  of  owners  unaffected  by  their  relation  of 
husband  and  wife.  The  dos  and  anti-dos  were  somewhat  in 
the  nature  of  mutual  gifts  in  consideration  of  mairiage. 
Every  species  of  property  which  might  be  subsequently  ac- 
quired, as  well  as  that  owned  at  the  time  of  marriage,  could 
be  the  subject  of  dotal  gift.  The  father,  or  other  paternal 
ancestor  of  the  bride,  was  bound  to  furnish  the  dos,  and  the 
husband  could  compel  them  afterwards,  if  they  failed  to  do 
so  ;  the  amount  or  value  being  regulated  according  to  the 
means  of  the  ancestor  and  the  dignity  of  the  husband.  This 
pecuniary  consideration  appears  to  have  influenced  the  later 
marriages  to  a  very  considerable  extent.  And  while  the  hus- 
band had  no  concern  with  the  wife's  extra-dotal  property, — 
since  this  she  could  manage  and  alienate  free  from  all  control 
or  interference,  —  over  her  dotal  property  he  acquired  a 
dominion  which  was  determinable  on  the  dissolution  of  the 
marriage,  unless  he  had  become  the  purchaser  at  an  estimated 
value.  As  incidental  to  this  dominion  he  had  the  usufruct  to 
himself,  he  might  sue  his  wife  or  any  one  else  who  obstructed 
his  free  enjoyment,  and  he  could  alienate  the  personal  prop- 
erty at  pleasure.  But  he  could  not  charge  the  real  estate 
unless  a  purchaser ;  and  upon  his  death  the  wife's  dotal 
12 


PART   1.]  INTHODUCTORY.  §  7 

property  belonged  to  her,  or,  if  she  had  not  been  emancipated, 
to  her  father  ;  and  to  secure  its  restitution  after  the  dissolu- 
tion of  marriage,  the  wife  had  a  tacit  lien  upon  her  husband's 
property.  Of  the  anti-do$,  or  donatio  -propter  nuptias,  not  so 
much  is  known  ;  but  this  appears  to  have  generally  corre- 
sponded with  the  dos  ;  it  was  lestored  by  the  wife  upon  the 
dissolution  of  marriage  ;  and  was  regarded  as  her  usufructu- 
hvy  property'  in  like  manner.  It  was  not  necessarily  of  the 
same  value  or  amount  with  the  wife's  dos.  Over  his  general 
property  the  husband  retained  the  sole  and  absolute  power  of 
alienation,  and  his  wife  liad  no  interest  in  it,  nor  coidd  she 
interfere  with  his  right  of  management.^ 

But  the  civil  law  allowed  agreements  to  be  made  by  which 
these  rights  might  be  regulated  and  varied  at  pleasure.  And 
by  their  stipulations  the  married  parties  might  so  enlarge 
their  respective  interests  as  to  provide  for  rights  to  the  survi- 
vor.2  These  agreements  were  not  unlike  the  antenuptial 
settlements  so  well  known  to  our  modern  equity  courts,  which 
we  shall  consider  in  due  course  hereafter. 

§  7.  Community  Property  Scheme.  —  (3.)  The  communio 
bono7'u?n,  or  community  system,  relates  to  marital  property,  in 
which  respect  it  occupies  an  intermediate  position  between 
the  civil  and  common  law  schemes.  The  communio  honorum 
may  have  been  part  of  the  Roman  law  at  an  earlier  period  of 
its  history,  but  it  had  ceased  to  exist  long  before  the  compila- 
tion of  the  Digest;  though  parties  might  by  their  nuptial 
agreement  adopt  it.^  This  constitutes  so  prominent  a  feature 
of  the  codes  of  France,  Spain,  and  other  countries  of  modern 
Europe,  whence  it  has  likewise  found  its  way  to  Louisiana, 
Florida,  Texas,  California,  and  other  adjacent  States,  once 
subject  to  French  and  Spanish  dominion,  and  erected,  in  fact, 
out  of  territor}^  acquired  during  the  present  century  upon 
the  Mississippi,  the  Gulf  of  Mexico,  and  the  Pacific  Ocean, 
that  it  deserves  a  brief  notice. 

The  relation   of  husband   and.  wife  is  regarded  by  these 

1  1  Burge  Col.  &  For.  Laws,  202;  3  1  Burge  Col.  &  For.  Laws,  202 ;  ih 
ib.  263  et  seq.                                                      263  et.  seq. 

2  1  Burge  Col.  &  For.  Laws,  273. 

13 


§  7  THE   DOMESTIC    RELATIONS.  [PAET   I. 

codes  as  a  species  of  partnershijD,  the  property  of  which,  like 
thut  of  any  other  partnership,  is  primarily  liable  for  the  pa}'- 
iiient  of  debts.  This  partnership  or  community  applies  to  all 
property  acquired  during  marriage  ;  and  it  is  the  well-settled 
rule  that  the  debts  of  the  partnership  have  priority  of  claim 
to  satisfaction  out  of  the  community  estate.  Sometimes  the 
community  is  universal,  comprising  not  only  property  ac- 
quired during  coverture,  but  all  which  belonged  to  the  hus- 
band and  wife  before  or  at  their  marriajre.^  It  is  evident, 
therefore,  that  the  provisions  of  such  codes  ma}^  differ  widely 
in  different  States  or  countries.  The  principle  which  distin- 
guishes the  community  from  both  the  civil  and  common  law- 
schemes  is,  however,  clear;  namely,  that  husband  and  wife 
should  have  no  property  apart  from  one  another. 

Under  modern  European  codes  this  law  of  community  em- 
braces profits,  income,  earnings,  and  all  property  which,  from 
its  nature  and  the  interest  of  the  owner,  is  the  subject  of  his 
uncontrolled  and  absolute  alienation  ;  but  certain  gifts  made 
between  husband  and  wife  in  contemplation  of  marriage  are 
of  course  properly  excluded.^  Whether  antenuptial  debts 
are  to  be  paid  from  the  common  propert}^  as  well  as  debts 
contracted  while  the  relation  of  husband  and  wife  continues, 
would  seem  to  depend  upon  the  extent  of  the  communio  hono- 
rum,  as  including  property  brought  by  each  as  capital  stock 
to  the  marriage,  or  only  such  property  as  they  acquire  after- 
wards.2  The  codes  of  modern  Europe  recognize  no  general 
capacity  of  the  wife  to  contract,  sue,  and  be  sued,  as  at  the 
later  civil  law.  On  the  contrary,  the  husband  becomes,  by 
his  marriage,  the  curator  of  his  wife.  He  has,  therefore,  the 
sole  administration  and  management  of  her  property,  and 
that  of  the  community  :  and  she  is  entirely  excluded  in  every 
case  in  which  her  acts  cannot  be  referred  to  an  authority, 
express  or  implied,  from  her  husband.*     Hence,  too,  all  debts 

^  1    Burge    Col.  &   For.  Laws,  277  nity;   but   the    Spanish   law   included 

et  seq.  botli  real  and  personal  estate.     ChilJ- 

2  1    Burge   Col.  &  For.  Laws,  281,  ress  v.  Cutter,  16  Mo.  24. 
282.     By  tlie  French  law  only  the  per-  s  1  Burge,  "294. 

sonal  estate  entered  into  the  coinmu-  *  Ih.  296,  301. 

14 


PAET   I.]  I  LNTRODUCTORY.  [§  7 

and  charges  are  incurred  by  the  husband.  The  community- 
ceases  on  the  termination  of  marriage  by  mutual  separation 
or  the  death  of  either  spouse.^  And  the  various  codes  pro- 
vide for  the  rights  of  the  survivor  on  tlie  legal  dissolution  of 
the  community  by  death. 

The  reader  may  readily  trace  the  influence  of  the  commu- 
nity system  upon  the  jurisprudence  of  Louisiana  and  the 
other  States  to  which  we  have  referred,  whose  annexation 
was  subsequent  to  the  adoption  of  our  Federal  Constitution, 
by  examining  their  judicial  reports.  The  Civil  Code  of  Loui- 
siana, as  amended  and  promulgated  in  1824,  pronounced  that 
the  partnership  or  community  of  acquets  or  gains  arising  dur- 
ing coverture  should  exist  in  every  marriage  where  there  was 
no  stipulation  to  the  contrary.  This  was  a  legal  consequence 
of  marriage  under  tlie  Spanish  law.^  The  statutes  of  Texas, 
Florida,  Missouri,  California,  and  other  neighboring  States, 
are  characterized  by  similar  features.  But  all  of  these  laws 
have  been  modified  by  settlers  bringing  with  them  the  princi- 
ples of  the  common  law.  So,  too,  the  doctrines  of  separate 
estate,  revived  in  modern  jurisprudence,  are  introduced  into 
the  legislation  of  these  as  other  American  States.^  The 
American  community  doctrine,  as  we  may  term  it,  is  that  all 
property  purchased  or  acquired  during  marriage,  by  or  in  the 
name  of  either  husband  or  wife,  or  both,  including  the  prod- 
uce of  reciprocal  industry  and  labor,  shall  be  deemed  to 
belong  prima  facie  to  the  community,  and  be  held  liable  for 
the  community  marriage  debts  accordingly.^  But  it  will  be 
perceived  that,  in  our  American  codes,  community,  as   an 

1  Ih.  303,  305.  Ann.  583.     Lnnd  owned  by  a  spouse  at 

2  Art.  2312,  2369,  2370;  2  Kent  tlie  time  of  marriage  does  not  fall  into 
Com.  183,  n.  tlie  community.     Lake  u.  Lake,  52  Cal. 

3  Texas  Digest,  Paschal,  "  Marital  428 ;  Eslinger  v.  Eslinger,  47  Cal.  62. 
Rights;"  Cal.  Civil  Code,  "Husband  The  wife's  earnings,  unless  given  her 
&  Wife;"  Parker's  Cal.  Dig.  "  Hus-  by  the  husband,  and  likewise  property 
band  and  Wife  ;  "  Walker  v.  Howard,  bought  with  such  earnings,  must  be- 
34  Tex.  478;  Caulk  v.  Picou,  23  La.  long  to  the  commuuit^v.  Johnson  v. 
Ann.  277.  And  see  Forbes  v.  Moore,  Burford,  39  Tex.  242.  But  see  Fisk  v. 
32  Tex.  195.  Flores,  43  Tex.  .340.     For  the   Ameri- 

*  Louisiana  Civil  Code,  §§  2369-  can  community  doctrine  in  detail,  see 
2372;  Succession  of  Pianchet,  29  La.  Schouler's  Husband  &  Wife,  §§  339- 
Ann.   520;   Tally  v.   Heffner,   29  La.    345. 

15. 


§  7  THE   DOMESTIC   RELATIONS.  [PART   I. 

incident  to  marriage  property,  is  only  a  presumption,  which 
may  be  overcome  in  any  instance  by  proof  that  the  property 
was  acquired  as  the  separate  estate  of  either  the  husband  or 
wife.  Tljis  community  rule,  moreover,  as  it  is  evident,  does 
not  apply  to  the  property  which  either  husband  or  wife 
brought  into  the  marriage  ;  such  property,  by  the  codes, 
being  distinctly  kept  to  each  spouse  apart  as  his  or  her  sepa- 
rate property.^  And,  besides,  it  is  now  usually  provided  by 
legislation  that  property  acquired  during  marriage,  "  by  gift, 
bequest,  devise,  or  descent,"  with  the  rents,  issues,  and  profits 
thereof,  shall  be  separate,  not  common  property.  The  ten- 
dency, then,  in  our  States,  where  the  law  of  community 
still  exists  —  though  all  have  not  proceeded  in  legislation  to 
the  same  length  —  is  to  limit  rather  than  extend  its  applica- 
tion. The  wife  has  a  tacit  mortgage  for  her  separate  prop- 
erty, so  far  as  the  law  may  have  placed  it  in  her  husband's 
control  ;  also  upon  the  community  property  from  the  time  it 
went  into  his  hands ;  and,  moreover,  she  may,  on  surviving 
her  husband,  renounce  the  partnership  or  community,  in 
which  case  she  takes  back  all  her  effects,  whether  dotal, 
extra-dotal,  hereditary,  or  proper.^ 

On  the  whole,  there  is  in  the  doctrine  of  community  much 
that  is  fair  and  reasonable ;  but  in  the  practical  workings  of 
this  sj'stem  it  is  found  rather  complicated  and  perplexing, 
and  hence  unsatisfactory;  while  in  no  part  of  the  United 
States  can  it  be  said  to  exist  at  this  day  in  full  force,  since 
husband  and  wife  are  left  pretty  free  to  contract  for  the 
separate  enjoyment  of  property,  and  so  exclude  the  legal 
presumption  of  community  altogether ;  ^  and  moreover,  the 

1  La.    Code,   §§  2316,   2369,   2371  ;  «  Sclioul.  Hiis  &  Wife,  §§  341,  342. 

Pinard's  Succession,  30  La.  Ann    167;  And  see  ib.,  §§  343,  344,  as  lo  tlie  wife's 

McAfee    v.    Robertson,   43   Tex.    591 ;  separate  property  under  tliose  codes ; 

Webb's    Estate,    Myrick's    Prob.    93  ;  viz.,  dotal  and  extra-dotal  or  paraplier- 

Sclimeltz  V.  Garey,  49  Tex.  49.     But  nal. 

the  wife   slionld  not  mingle  her  sepa-  ^  See  Packard  v.  Arellanos,  17  Cal. 

rate  funds  with  those  of  tlie  comnm-  525;  Waul  v.  Kirkman,  25  Miss.  009; 

nity  ill  making  a  purchase,  as  of  her  Succession  of  McLean,  12  La.  Ann.  222; 

separate  estate.     Reid  v.  Rochereau,  2  Jones  v.  Jones,  15  Tex.  143;  Ex  pm-te 

Woods,   151.     See    Schouler    Has.    &  Melbourn,  L.  R.  6  Ch.  64;   La.   Civil 

Wife,  341.  Code,  §§  23G9-2405 ;   1  Burge  Col.  & 

16 


PART   I.]  INTRODUCTORY.  §  9 

constant  tendency  of  our  southwestern  States  is  to  remodel 
their  institutions  upon  the  Anglo-American  basis,  common 
to  the  original  States  and  those  of  the  Ohio  valley. 

§  8.  The  Recent  Married  Women's  Acts.  —  What  are  famil- 
iarly known  as  the  "  married  women's  acts,"  the  product  for 
the  most  part  of  our  American  legislation  since  1848,  and 
more  recently  engrafted  upon  the  code  of  Great  Britain,  aim 
to  secure  to  the  wife  the  independent  control  of  her  own 
property,  and  the  right  to  contract,  sue,  and  be  sued,  without 
her  husband,  under  reasonable  limitations.  These  acts,  there- 
fore, substitute  in  a  great  measure  the  civil  for  the  common 
law.  It  may  be  laid  down  that  the  common  law,  in  denying 
to  the  wife  the  rights  of  ownership  in  property  acquired  by 
gift,  purchase,  bequest,  or  otherwise,  did  her  injustice,  and 
that  a  radical  change  became  necessary ;  and  this  is  shown, 
not  only  in  the  legislation  of  our  States,  but  by  the  fact  that 
the  equity  tribunals  gradually  moulded  the  unwritten  law  of 
England  so  as  to  secure  like  results. 

All  this  separate  property  legislation,  as  well  as  the  equity 
doctrines  pertaining  to  the  subject  in  England  and  the  several 
United  States,  will  be  duly  set  forth  in  these  pages  hereafter, 
so  far  as  the  chaotic  condition  of  the  law  at  this  transition 
period  will  permit.^  And  the  modification  of  the  respective 
property  rights  of  a  married  pair  by  marriage  contracts  or 
settlements  will  also  be  considered.^ 

§  9.  Marriage  and  Marital  Influence.  —  In  the  connubial 
joys  to  which  every  age  and  nation  bears  witness,  the  vast 
majority  of  this  globe's  inhabitants  must  have  participated 
from  one  era  to  another,  with  a  certain  voluntary  adjustment 
of  the  reciprocal  burdens,  such  as  relieved  both  husband  and 
wife  of  a  sense  of  bondage  to  one  another.  And  thus  have 
the  inequalities,  the  hardships  of  marriage  codes,  proved  less 
in   practice    than    in  literal    expression.     For  whatever   the 

For.  Laws,  277  et  secj,  where  the  law  of  i  See   coverture   doctrine,  modified 

community  as  it  was  about  half  a  cen-  by  equity  and  modern   statutes,  Part 

tury  ago   is   fully  set   fortli ;   and   the  11.,  post. 

learned  note  to  2  Kent  Com.  188.     See         2  Marriage  Settlements,  post. 

also   Schouler   Hus.  &   Wife,  §§  335- 

345. 

2  17 


§  10  THE  DOMESTIC   RELATIONS.  [PART   I. 

apparent  severity  of  the  law,  human  nature  or  love's  divine 
instinct  works  in  one  uniform  direction,  namely,  towards 
uniting  the  souls  once  brought  into  the  arcana  of  married  life, 
in  an  equally  honorable  companionship.  Woman's  weakness 
has  been  her  strongest  weapon  ;  where  her  influence  could 
not  overflow,  it  permeated ;  and  if  her  life  has  been,  legally 
speaking,  at  her  husband's  mercy,  her  constant  study  to  please 
has  kept  him  generally  merciful.  She  has  not  been  superior 
to  her  race  and  epoch,  but  on  the  whole  as  well  protected,  as 
Avell  advanced,  in  her  day,  as  those  of  the  other  sex.  Except 
for  this,  the  wife's  lot  must  have  been  miserable  indeed,  even 
under  the  most  civilized  institutions  ever  established.  Codes 
and  the  experience  of  nations  in  this  respect  show  strange 
inconsistencies :  laws  at  one  time  degrading  to  woman,  and 
yet  marital  happiness  ;  laws  at  another  elevating  her  indepen- 
dence to  the  utmost,  and  yet  marital  infelicities,  lust,  and 
bestiality.^ 

§  10.  General  Conclusions  as  to  the  Law  of  Husband  and 
"Wife.  —  The  conclusions  to  which  this  writer's  investigation 
upon  the  general  subject  of  husband  and  wife  conducts  him 
are  these.  Marriage  is  a  relation  divinely  instituted  for  the 
mutual  comfort,  well-being,  and  happiness  of  both  man  and 
woman,  for  the  proper  nurture  and  maintenance  of  offspring, 
and  for  the  education  in  turn  of  the  whole  human  race.  Its 
application  to  society  being  universal,  the  fundamental  rights 
and  duties  involved  in  this  relation  are  recognized  by  some- 

1  Soe  examination  of  ancient  mar-  the  bonds  of  family  affection  became 
riage  systems,  including  that  of  the  weakened.  When  the  empire  sank  in- 
Roman  republic,  in  Schoul.  Has.  &  to  utter  dissolution,  woman  possessed  a 
Wife,  §§  4-6.  large  share  of  cultivation  and  personal 

Wliether,  in  setting  at  naught  that  freedom  ;  yet  she  had  touched  the  low- 
identity  of  interests  which  is  essential  est  depths  of  social  degradation, 
to  domestic  happiness,  the  later  Roman  This  degradation  it  became  the  mis- 
scheme  was  fatally  defective,  or  the  sion  of  the  Christian  Church  to  correct 
conjugal  decay  which  ensued  was  due  during  the  lapse  of  the  dark  ages,  by 
to  causes  more  latent,  need  not  here  be  restoring  the  dignity  of  marriage,  — 
discussed.  Certain  it  is,  however,  that  e.xalting  it,  in  fact,  to  a  sacrament,  and 
wide-spread  incestuous  intercourse,  li-  almost  utterly  prohibiting  its  dissolu- 
centiousness  most  loathsome  and  un-  tion.  From  so  strict  a  view  of  mar- 
natural,  followed  in  the  wake  of  mari-  riage,  however,  Protestant  countries  in 
tal  independence  ;  and,  as  the  interests  modern  times  dissent.  lb. 
of  husband  and  wife  began  to  diverge, 

18 


PART  I.]  INTRODUCTORY.  §  10 

thing  akin  to  instinct,  and  often  designated  by  that  name,  so 
as  to  require  by  no  means  an  intellectual  insight ;  intellect, 
in  fact,  impairing  often  that  devotedness  of  affection  which  is 
the  essential  ingredient  and  charm  of  the  relation.  Indeed 
the  rudest  savages  understand  how  to  bear  and  bring  up 
healthy  offspring.  Legal  and  political  systems  are  accretions 
based  upon  marriage  and  property ;  but  in  the  family  rather 
than  individualism  we  find  the  incentive  to  accumulation,  and 
in  the  home  the  primary  school  of  the  virtues,  private  and 
public.  At  the  same  time,  marriage  affords  necessarily  a  dis- 
cipline to  both  sexes  ;  sexual  indulgence  is  mutually  permitted 
under  healthy  restraints  ;  woman's  condition  becomes  neces- 
sarily one  of  comparative  subjection  ;  man  is  tamed  by  her 
gentleness  and  the  helplessness  of  tender  offspring,  and  for 
their  sake  he  puts  a  clieck  upon  his  baser  appetites,  and  con- 
centrates his  affection  upon  the  home  he  has  founded.  Such 
is  the  conjugal  union  in  what  we  term  a  state  of  nature. 
And  now,  while  man  frames  the  laws  of  that  union,  as  he 
always  does  in  primitive  society,  he  regards  himself  as  the 
rightful  head  of  the  family  and  lord  of  his  spouse  ;  and,  some- 
what indulgent  of  his  own  errant  passions,  he  makes  the 
chastity  of  his  wife  the  one  indispensable  condition  of  their 
joint  companionship.  She,  on  her  part,  more  easily  chaste 
than  himself,  views  with  pain  whatever  embraces  he  bestows 
upon  others  of  her  sex.  Her  personal  influence  over  him, 
always  strong,  enlarges  its  scope  as  the  state  advances  in  arts 
and  refinement,  until  at  length  woman,  as  the  maiden,  the 
wife,  and  the  matron,  becomes  intellectually  cultivated,  a 
recognized  social  power  in  the  community.  Yearning  now 
for  a  wider  influence  and  equal  conditions,  her  attention, 
strongly  concentrated  upon  the  marriage  relation,  seeks  to 
make  the  marriage  terms  equal :  first,  she  desires  her  prop- 
erty secured  to  her  own  use,  whether  married  or  single,  and, 
indignant  at  the  inadequate  remedies  afforded  under  the  law 
for  wifely  wrongs,  demands  the  right  of  dismissing  an  unworthy 
husband  at  pleasure  ;  moreover,  as  a  mother,  she  claims 
that  the  children  shall  be  hers  not  less  than  the  father's. 
These  first  inroads  are  easily  made  ;  for  what  she  demands  is 

19 


§  11  THE   DOMESTIC  RELATIONS.  [PART  I. 

theoretically  just.  But  just  at  this  point  the  peril  of  female 
influence  is  developed.  Woman  rarely  comprehends  the 
violence  of  man's  unbridled  appetite,  or  perceives  clearly  that, 
after  all,  in  the  moral  purity  and  sweetness  of  her  own  sex, 
such  as  excites  man's  devotion,  and  makes  home  attractive,  is 
the  fundamental  safeguard  of  life  and  her  own  most  powerful 
lever  in  society,  besides  the  surest  means  of  keeping  men 
themselves  continent.  She  forgets,  too,  that,  to  protect  that 
purity  and  maintain  her  moral  elevation,  a  certain  seclusion  is 
needful ;  which  seclusion  is  highly  favorable  to  those  domes- 
tic duties  which  nature  assigns  her  as  her  own.  More  is 
granted  woman.  The  bond  of  marriage  being  loosened,  pos- 
terity degenerates,  society  goes  headlong;  and  the  flood-gates 
of  licentiousness  once  fully  opened,  the  hand  must  be  strong 
that  can  close  them  again. 

Happiness,  we  may  admit,  differs  with  the  capacity,  like 
the  great  and  small  glass  equally  full,  which  Dr.  Johnson  men- 
tions. Yet  marriage  is  suited  to  all  capacities  ;  and  men  and 
women  are  the  complement  of  one  another  in  all  ages,  neither 
being  greatly  the  intellectual  superior  of  the  other  at  any 
epoch,  but  the  man  always  having  necessarily  the  advantage 
in  physical  strength  and  the  power  to  rule.  The  best  ordered 
marriage  union  for  any  community  is  that  in  which  each  sex 
accepts  its  natural  place,  where  woman  is  neither  the  slave 
nor  the  rival  of  man,  but  his  intelligent  helpmate  ;  where  a 
sound  progeny  is  brought  up  under  healthy  home  influences. 
The  worst  is  that  where  conjugal  and  parental  affection  fails, 
and  all  is  discord  and  unrest,  a  sea  without  a  safe  harbor. 
To  the  household,  stability  may  prove  more  essential  than 
freedom,  and  woman's  status  more  dignified  or  more  de- 
graded, as  the  case  may  be,  than  the  law  assumes  to  fix  it. 

§  11.  Remaining  Topics  of  the  Domestic  Relations;  Modern 
Changes.  —  Of  the  remaining  topics  to  be  discussed  in  the 
present  treatise,  little  need  be  said  by  way  of  general  preface. 
These  have  felt  the  softening  influences  of  modern  civiliza- 
tion. The  common-law  doctrine  of  Parent  and  Child  finds 
its  most  important  modifications  in  the  gradual  admission  of 
the  mother  to  something  like  an  equal  share  of  parental 
20 


PART  I.]  INTEODUCTOEY.  §  11 

authority  ;  in  the  growth  of  popular  systems  of  education  for 
the  young  ;  in  the  enlarged  opportunities  of  earning  a  liveli- 
hood afforded  to  the  children  of  idle  and  dissolute  parents  ; 
and.  in  the  lessened  misfortunes  of  bastard,  offspring.  Guar- 
dian and  Ward,  a  relation  of  little  importance  up  to  Black- 
stone's  day,  has  rapidly  developed  since  into  a  permanent 
and  well-regulated  sj'stem  under  tlie  supervision  of  the  chan- 
cery courts,  and,  in  this  country,  of  the  tribunals  also  with 
probate  jurisdiction  ;  and  much  of  the  old  learning  on  this 
branch  of  the  law  has  become  rubbish  for  the  antiquary. 
The  law  of  Infancy  remains  comparatively  unchanged.  Of 
Master  and  Servant,  we  have  spoken. 

We  are  now  to  investigate  in  detail  the  law  of  these  several 
topics.  But  first  the  reader  is  reminded  that  the  o£&ce  of  the 
text-writer  is  to  inform  rather  than  invent ;  to  be  accurate 
rather  than  original  ;  to  chronicle  the  decisions  of  others, 
not  his  own  desires ;  to  illumine  paths  already  trodden  ;  to 
criticise,  if  need  be,  yet  always  fairly  and  in  furtherance  of 
the  ends  of  justice  ;  to  analyze,  classify,  and  arrange  ;  from  a 
mass  of  discordant  material  to  extract  all  that  is  useful,  sep- 
arating the  good  from  the  bad,  rejecting  whatever  is  obsolete, 
searching  at  all  times  for  guiding  principles ;  and,  in  fine,  to 
emblazon  that  long  list  of  judicial  precedents  through  which 
our  Anglo-Saxon  freedom  "  broadens  slowly  down." 

21 


§  13  THE  DOMESTIC   RELATIONS.  [PAET  II. 


PART  II. 

HUSBAND  AND  WIFE. 
CHAPTER   L 

MAEEIAGB. 

§  12.  Definition  of  Marriage.  —  The  word  "marriage"  big- 
nifies,  in  the  first  instance,  that  act  by  which  a  man  and 
woman  unite  for  life,  with  the  intent  to  discharge  towards 
society  and  one  another  those  duties  which  result  from  the 
relation  of  husband  and  wife.  The  act  of  union  having  been 
once  accomplished,  the  word  comes  afterwards  to  denote  the 
relation  itself. 

§  13.  Marriage  more  than  a  Civil  Contract.  —  It  has  been 
frequently  said  in  the  courts  of  this  country  that  marriage  is 
nothinof  more  than  a  civil  contract.  That  it  is  a  contract  is 
doubtless  true  to  a  certain  extent,  since  the  law  always  pre- 
sumes two  parties  of  competent  understanding  who  enter  into 
a  mutual  agreement,  which  becomes  executed,  as  it  were,  by 
the  act  of  marriage.  But  this  agreement  differs  essentially 
from  all  othei^s.  This  contract  of  the  parties  is  simply  to 
enter  into  a  certain  status  or  relation.  The  rights  and  obli- 
gations of  that  status  are  fixed  by  society  in  accordance  with 
principles  of  natural  law,  and  are  beyond  and  above  the 
parties  themselves.  They  may  make  settlements  and  regu- 
late the  property  rights  of  each  other  ;  but  they  cannot  mod- 
ify the  terms  upon  which  they  are  to  live  together,  nor 
superadd  to  the  relation  a  single  condition.  Being  once 
bound  they  are  bound  for  ever.  Mutual  consent,  as  in  all 
22 


CHAP.  I.]  MARRIAGE.  §  13 

contracts,  brings  them  together ;  but  mutual  consent  cannot 
part  them.  Death  alone  dissolves  the  tie,  —  unless  the  legis- 
lature, in  the  exercise  of  a  rightful  authority,  interposes  by 
general  or  special  ordinance  to  pronounce  a  solemn  divorce  ; 
and  this  it  should  do  only  when  the  grossly  immoral  conduct 
of  one  contracting  party  brings  unmerited  shame  upon  the 
other,  disgraces  an  innocent  offspring,  and  inflicts  a  wound 
upon  the  community.  So  in  other  respects  the  law  of  mar- 
riage differs  from  that  of  ordinary  contracts.  For,  as  concerns 
the  parties  themselves,  mental  capacity  is  not  the  only  test  of 
fitness,  but  physical  capacity  likewise,  —  a  new  element  for 
consideration,  no  less  important  than  the  other.  Again, 
the  encumbrance  of  an  existing  union  operates  here  as  a 
special  disqualification.  Blood  relationship  is  another.  So 
too  an  infant's  capacity  is  treated  on  peculiar  principles,  as 
far  as  the  marriage  contract  is  concerned,  for  he  can  marry 
young  and  be  bound  by  his  marriage.  Third  parties  cannot 
attack  a  marriage  because  of  its  injury  to  their  own  interests. 
International  law  relaxes  its  usual  requirements  in  favor  of 
marriage.  And  finally  the  formal  celebration  now  prevalent, 
both  in  England  and  America,  is  something  peculiar  to  the 
marriage  contract ;  and  in  its  performance  we  see  but  the 
faintest  analogy  to  the  execution  and  dehvery  of  a  sealed 
instrument. 

The  earnestness  with  which  so  many  of  our  American  pro- 
genitors insisted  upon  the  contract  view  of  marriage  may  be 
ascribed  in  part  to  their  hatred  of  the  Papacy  and  ritualism, 
and  their  determination  to  escape  the  conclusion  that  mar- 
riage was  a  sacrament.  By  no  people  have  the  marriage  vows 
been  more  sacredly  performed  than  by  ours  down  to  a  period, 
at  all  events,  comparatively  recent.  That  a  State  legislature 
is  not  precluded  from  regulating  the  marriage  institution 
under  any  constitutional  interdiction  of  acts  impairing  the 
obligation  of  contracts,  or  interfering  with  private  rights  and 
immunities,  has  frequently  been  asserted.^     And  as  to  the 

1  Maguire  v.  Maguire,  7  Dana,  181 ;     Ottenheimer,  6  Oreg.  231 ;  Adams  v. 
Green  v.  State,  58  Ala.  190 ;  Frasher    Palmer,  51  Me.  480. 
V.  State,  3   Tex.  App.   263;  Rugh  v. 

23 


§  14  THE  DOMESTIC  RELATIONS.  [PART  11. 

private  regulation  of  their  property  rights,  by  the  contract  of 
parties  to  a  marriage,  that,  of  course,  is  to  be  distinguished 
from  their  marriage,  which  may  take  place  without  any  prop- 
erty regulation  whatever. ^ 

We  are  then  to  consider  marriage  not  as  a  contract  in 
the  ordinary  acceptation  of  the  term ;  but  as  a  contract  sui 
generis,  if,  indeed,  it  be  a  contract  at  all ;  as  an  agreement  to 
enter  into  a  solemn  relation  which  imposes  its  own  terms. 
On  the  one  hand  discarding  the  unwarranted  dogmas  of 
the  church  of  Rome  by  which  marriage  is  elevated  to  the 
character  of  a  sacrament,  on  the  other  we  repudiate  that  dry 
definition  with  which  the  lawgiver  or  jurist  sometimes  seeks 
to  impose  upon  the  natural  instincts  of  mankind.  We  adopt 
such  views  as  the  distinguished  Lord  Robertson  held.^  And 
Judge  Story  observes  of  marriage  :  "  It  appears  to  me  some- 
thing more  than  a  mere  contract.  It  is  rather  to  be  deemed 
an  institution  of  society  founded  upon  the  consent  and  con- 
tract of  the  parties  ;  and  in  this  view  it  has  some  peculiarities 
in  its  nature,  character,  operation,  and  extent  of  obligation, 
different  from  what  belongs  to  ordinary  contracts."  ^  So  Era- 
ser, while  defining  marriage  as  a  contract,  adds  in  forcible 
language  :  "  Unlike  other  contracts,  it  is  one  instituted  by 
God  himself,  and  has  its  foundation  in  the  law  of  nature.  It 
is  the  parent,  not  the  child,  of  civil  society."  *  And  we  may 
add  that  a  recent  American  text-writer,  of  high  repute  upon 
the  subject,  not  only  pronounces  for  this  doctrine,  after  a 
careful  examination  of  all  the  authorities,  but  ascribes  the 
chief  embarrassment  of  American  tribunals,  in  questions 
arising  under  the  conflict  of  marriage  and  divorce  laws,  to 
the  custom  of  applying  the  rules  of  ordinary  contracts  to  the 
marriage  relation.^ 

§  14.  Marriages  void  and  voidable.  —  A  distinction  is  made 
at  law  between  void  and  voidable  marriages.     This  distinc- 

1  Lord  Stowell,  in  Lindo  v.  Belisario,         *  1  Eras.  Dora.  Rel.  87. 

1  Hag.  Con.  216 ;  1  Bish.  Mar.  &  Div.  5  i  Bish.  Mar.  &  Div.  5th  ed.  §  18. 

5th  ed.  §  14.  And  see  Dickson  ;;.  Dickson,  1  Yerg. 

2  Duntze  v.  Levett,  Ferg.  68,  385,  110,  per  Catron,  J. ;  Ditson  v.  Ditson, 
397  ;  3  Eng.  Ec.  360,  495,  502,  4  R.  I.  87,  per  Ames,  C.  J. 

8  Story  Confl.  Laws,  §  108  n. 

24 


CHAP.  I.]  MARRIAGE.  §  14 

tion,  which  appears  to  have  originated  in  a  conflict  between 
the  English  ecclesiastical  and  common-law  courts,  was  first 
announced  in  a  statute  passed  during  the  reign  of  Henry 
VIII.  ;  and  it  is  also  to  be  found  in  succeeding  marriage  and 
divorce  acts  down  to  the  present  day.  The  distinction  of 
void  and  voidable  applies  not  to  the  legal  consequences  of  an 
imperfect  marriage,  once  formally  dissolved,  but  to  the  status 
of  the  parties  and  their  offspring  before  such  dissolution.  A 
void  marriage  is  a  mere  nullity,  and  its  validity  may  be  im- 
peached in  any  court,  whether  the  question  arise  directly  or 
collaterally,  and  whether  the  parties  be  living  or  dead.  But 
a  voidable  marriage  is  valid  for  all  civil  purposes  until  a  com- 
petent tribunal  has  pronounced  the  sentence  of  nullity,  upon 
direct  proceedings  instituted  for  the  purpose  of  setting  the 
marriage  aside.  When  once  set  aside,  the  marriage  is  treated 
as  void  ah  initio  ;  but  unless  the  suit  for  nullity  reaches  its 
conclusion  during  the  lifetime  of  both  parties,  all  proceedings 
fall  to  the  ground,  and  both  survivor  and  offspring  stand  as 
well  as  though  the  union  had  been  lawful  from  its  inception.^ 
Hence  we  see  that,  while  a  void  marriage  makes  cohabitation 
at  all  times  unlawful,  and  bastardizes  the  issue,  a  voidable 
marriage  protects  intercourse  between  the  parties  for  the  time 
being,  furnishes  the  usual  incidents  of  survivorship,  such  as 
curtesy  and  dower,  and  encourages  the  propagation  of  chil- 
dren. But  the  moment  the  sentence  of  nullity  is  pronounced, 
the  shield  of  the  law  falls,  the  incidents  vanish,  and  innocent 
offspring  are  exposed  to  the  world  as  bastards  ;  and  herein  is 
the  greatest  hardship  of  a  voidable  marriage. 

The  old  rule  is  that  civil  disabilities,  such  as  idiocy  and 
fraud,  render  a  marriage  void ;  while  the  canonical  impedi- 
ments, such  as  consanguinity  and  impotence,  make  it  void- 
able only.  This  test  was  never  a  clear  one,  and  it  has 
become  of  little  practical  consequence  at  the  present  day. 
Statutes  both  in  England  and  America  have  greatly  modified 
the  ancient  law  of  valid  marriages,  and  it  can  onl}^  be  affirmed 
in  general  terms  that  the  legislative  tendency  is  to  make  mar- 

1  1  St.  32  Hen.  VIII.  c.  38.     See  1  Bish.  Mar.  &  Div.  5th  ed.  §  108  ct  seq. 

25 


§  15  THE  DOMESTIC   RELATIONS.  [PAKT  n. 

riages  voidable  rather  than  void,  wherever  the  impediment  is 
such  as  might  not  have  been  readily  known  to  both  parties 
before  marriage  ;  and  where  public  policy  does  not  rise  supe- 
rior to  all  considerations  of  private  utility.  Modern  civihza- 
tion  strongly  condemns  the  harsh  doctrine  of  ah  initio 
sentences  of  nullity ;  and  such  sentences  have  now  in  general 
a  prospective  force  only,  in  order  that  rights  already  vested 
may  remain  unimpaired,  and,  still  more,  that  children  may 
not  suffer  for  the  follies  of  their  parents.^ 

§  15.  Essentials  of  Marriage.  —  We  shall  consider  in  this 
chapter  that  act  by  which  parties  unite  in  matrimony,  —  for 
to  this  the  term  "  marriage  "  is  most  frequently  applied.  It 
may  be  stated  generally  that,  in  order  to  constitute  a  perfect 
union,  the  contracting  parties  should  be  two  persons  of  the 
opposite  sexes,  without  disqualification  of  blood  or  condition, 
both  mentally  competent  and  physically  fit  to  discharge  the 
duties  of  the  relation,  neither  of  them  being  bound  by  a  pre- 
vious nuptial  tie,  neither  of  them  withholding  a  free  assent ; 
and  the  expression  of  their  mutual  assent  should  be  substan- 
tially in  accordance  with  the  prescribed  forms  of  law.  These 
are  the  essentials  of  marriage.  Hence  we  are  to  treat  of  the 
following  topics  in  connection  with  the  essentials  of  a  valid 
marriage :  first,  the  disqualification  of  blood ;  second,  the 
disqualification  of  civil  condition ;  third,  mental  capacity ; 
fourth,  physical  capacity  ;  fifth,  the  disqualification  of  in- 
fancy, which  in  reality  is  based  upon  united  considerations  of 
mental  and  physical  unfitness ;  sixth,  prior  marriage  undis- 
solved ;  seventh,  force,  fraud,  and  error ;  eighth,  the  formal 
celebration  of  a  marriage,  under  which  last  head  may  be  also 
included  the  consent  of  parents  or  guardians,  not  to  be 
deemed  an  essential,  except  in  conformity  with  the  require- 
ments of  the  marriage  celebration  acts.     These  essentials  all 

1  Shelf.  Mar.  &  Div.  154  ;  76.  479-  v.  Goodrich,  41  Vt.  47  ;  Divorce,  jtost. 

484  ;  1  Bl.  Com.  434  ;  1  Bish.  Mar.  &  Held  contra  as  to  tlie  marriage  of  a  ne- 

Div.  5th  ed.  §§  105-120.     See  Stat.  5  gro  and  white  person.    Carter  v.  Mont- 

&  6  Will.  IV.  c.  54 ;  2  N.  Y.  Rev.  Sts.  gomery,  2  Tenn.  Ch.  216.     And   see 

139,  §  6 ;  Mass.  Gen.   Sts.  c.  106,  §  4 ;  post  as   to  impotence   or  physical  in- 

Harrison  v.  State,  22  Md.  468  ;  Bowers  capacity. 
V.  Bowers,  10  Eich.  Eq.  551 ;  Pingree 

26 


CHAP.  I.]  MARRIAGE.  §  16 

have  reference  solely  to  the  time,  place,  and  circumstances  of 
entering  into  the  marriage  relation,  and  not  to  any  subse- 
quent incapacity  of  either  party. 

§  16.  Disqualification  of  Blood;  Consanguinity  and  Affinity. — 
And,  firsts  as  to  the  disqualification  of  blood.  On  no  point 
have  writers  of  all  ages  and  countries  been  more  united  than 
in  the  conviction  that  nature  abhors,  as  vile  and  unclean,  all 
sexual  intercourse  between  persons  of  near  relationship.  But 
on  few  subjects  have  they  differed  more  widely  as  in  the  ap- 
plication of  this  conviction.  Among  Eastern  nations,  since 
the  days  of  the  patriarchs,  practices  have  prevailed  which  to 
Christian  nations  and  in  days  of  civilized  refinement,  seem 
shocking  and  strange.  The  difficulty  then  is,  not  in  discov- 
ering that  there  is  some  prohibition  by  God's  law,  but  in 
ascertaining  how  far  that  prohibition  extends.  This  difficulty 
is  manifested  in  our  language  by  the  use  of  two  terms,  —  con- 
sanguinity and  affinity ;  one  of  which  covers  the  terra  firma 
of  incestuous  marriages,  the  other  offers  debatable  ground. 
The  disqualification  of  consanguinity  applies  to  marriages 
between  blood  relations  in  the  lineal  or  ascending  and  de- 
scending lines.  There  can  be  but  one  opinion  concerning 
the  union  of  relations  as  near  as  brother  and  sister.  The 
limit  of  prohibition  among  remote  collateral  kindred  has, 
however,  been  differently  assigned  in  different  countries. 
The  English  canonical  rule  is  that  of  the  Jewish  law.  The 
Greeks  and  Romans  recognized  like  principles,  though  with 
various  modifications  and  alterations  of  opinion.  But  the 
church  of  the  Middle  Ages  found  in  the  institution  of  mar- 
riage, once  placed  among  the  sacraments,  a  most  powerful 
lever  of  social  influence.  The  English  ecclesiastical  courts 
made  use  of  this  disqualification,  extending  it  to  the  seventh 
degree  of  canonical  reckoning  in  some  cases,  and  beyond  all 
reasonable  bounds.-^  So  intolerable  became  this  oppression, 
that  a  statute  passed  in  the  time  of  Henry  VIII.  forbade 
these  courts  thenceforth  to  draw  in  question  marriages  with- 

'  In    some  Roman  Catholic  coun-    tuous.     See  Sottomayor  v.  De  Barros, 
tries,  — e.  .7.   Portu<?al,  — the  marriage    L.  R.  2  P.  D.  81 ;  L.  R.  3  P.  D.  1. 
of  first  cousins  is  still  pronounced  inces- 

27 


§  16  THE   DOMESTIC   EELATIONS.  [PART  II. 

out  the  Levitical  degree,  "  not  prohibited  by  God's  law."  ^ 
Under  this  statute,  which  is  still  essentially  in  force  in  Eng- 
land, the  impediment  has  been  treated  as  applicable  to  the 
whole  ascending  and  descending  line,  and  further,  as  extend- 
ing to  the  third  degree  of  the  civil  reckoning  inclusive ;  or  in 
other  words,  so  as  to  prohibit  all  marriages  nearer  than  first 
cousins.  Archbishop  Parker's  table  of  degrees,  which  recog- 
nizes these  limits,  has  been,  since  1563,  the  standard  adopted 
in  the  English  ecclesiastical  courts.^  The  statute  prohibition 
includes  legitimate  as  well  as  illegitimate  children,  and  half- 
blood  kindred  equally  with  those  of  the  whole  blood.^  Its 
principles  have  been  recognized  in  the  United  States.* 

But  the  English  law  goes  even  further,  and  places  affinity 
on  the  same  footing  as  consanguinity  as  an  impediment. 
Affinity  is  the  relationship  which  arises  from  marriage  be- 
tween a  husband  and  his  wife's  kindred,  and  vice  versa.  It 
is  shown  that  while  the  marriage  of  persons  allied  by  blood 
produces  offspring  feeble  in  body  and  tending  to  insanity, 
that  of  persons  connected  by  affinity  leads  to  no  such  result ; 
and  further,  that  consanguinity  has  been  everywhere  recog- 

1  Stat.  32  Hen.  VIII.  c.  38.  See  1  Bish.  Mar.  &  Div.  5th  ed.  §§  106, 107  ;  2  Kent 
Com.  82,  83 ;  Shelf.  Mar.  &  Div.  163  et  seq. ;  Wing  v.  Taylor,  2  Swab.  &  T.  278, 
295. 

2  1  Bish.  Mar.  &  Div.  .5th  ed.  §  318;  Butler  v.  Gastrill,  Gilb.  Ch.  156.  Accord- 
ing to  this  table,  — 

A  man  may  not  marry  his  A  woman  may  not  marry  her 

1.  Grandmother.  1.  Grandfather. 

2.  Grandfather's  wife.  2.  Grandmother's  husband. 

3.  Wife's  grandmother.  3.  Husband's  grandfather. 

4.  Father's  sister.  4.  Father's  brother. 

5.  Motlier's  sister.  5.  Mother's  brother. 

6.  Father's  brother's  wife.  6.  Father's  sister's  husband. 

7.  Mother's  brother's  wife.  7.  Motlier's  sister's  husband. 

8.  Wife's  father's  sister.  8.  Husband's  father's  brother. 

9.  Wife's  mother's  sister.  9.  Husband's  mother's  brother. 

10.  Motiier.  10.  Father. 

11.  Stepmother.  11.  Step-father. 

12.  Wife's  mother.  12.  Husband's  father. 

13.  Daughter.  13.  Son. 

14.  Wife's  daughter.  14.  Husband's  son. 

3  1  Bish.  Mar.  &  Div.  5th  ed.  §§  315,  317  ;  Reg.  v.  Brighton,  1  B.  &  S. 
447. 

■*  Marriage  between  an  uncle  and  niece  has  been  treated  as  incestuous.  Har- 
rison V.  State,  22  Md.  468;  Bowers  v.  Bowers,  10  Rich.  Eq.  551. 

28 


CHAP.  I.]  MAEEIAGE.  §  17 

nized  as  an  impediment,  but  not  affinity.  The  worst  that 
can  probably  be  said  of  the  latter  is,  that  it  leads  to  confusion 
of  domestic  rights  and  duties.  No  question  has  been  dis- 
cussed with  more  earnestness  in  both  England  and  America, 
with  less  positive  result,  than  one  which  turns  upon  this  very 
distinction  ;  namely,  whether  a  man  may  marry  his  deceased 
wife's  sister.  This  question  has  received  a  favorable  response 
in  Vermont.^  But  in  England  such  marriages  are  still  deemed 
incestuous,  and  within  the  prohibition  of  God's  law,  and 
the  House  of  Lords  resists  all  legislative  change  in  this 
respect.^ 

Marriages  within  the  forbidden  degrees  of  consanguinity 
were  formerly  only  voidable  in  English  law  ;  but  by  modern 
statutes  they  have  been  made  null  and  void.  In  this  coun- 
try they  are  generally  pronounced  void  by  statute  (that  is  to 
say,  void  from  the  time  the  sentence  is  pronounced), ^  and 
the  offending  parties  are  liable  to  imprisonment.  But  with 
regard  to  marriages  among  relatives  by  affinity,  the  rule  is 
not  so  stringent  as  in  England.^ 

§  17.  Disqualification  of  Civil  Condition ;  Race,  Color,  Social 
Rank,  Religion.  —  Second^  as  to  the  disqualification  of  civil  con- 
dition. Race,  color,  and  social  rank  do  not  appear  to  consti- 
tute an  impediment  to  marriage  at  the  common  law,  nor  is  any 

1  Blodget  V.  Brinsmaid,  9  Vt.  27;  Ex  parte  Naden,  L.  R.  9  Ch.  G70.  And 
and  see  1  Bish.  Mar.  &  Div.  5th  ed.  see  Commonwealtli  v.  Ferryman,  2 
§  314;  Paddock  v.  Wells,  2  Barb.  Ch.  Leigh,  717,  as  to  the  Virginia  statute 
331.     Collamer  J.,  in  Blodget  v.  Brins-  on  this  point. 

maid,  makes  this  ingenious  distinction  :  ^  Tiiat  is  to  say,  not  void  ah  initio. 

"  The  relationship  by  consanguinity  is,  See  supra,  §  14  ;  Harrison  v.  State,  22 

in  its  nature,  incapable  of  dissolution  ;  Md.  468.'    And  see  Bowers  v.  Bowers, 

but  the  relationship  by  affinity  ceases  10  Rich.  Eq.  551  ;  Parker's  Appeal,  8 

with  the  dissolution  of  the   marriage  Wright,  309,  where  an  incestuous  niar- 

which  produced  it.     Therefore,  though  riage  is  treated  as  simply  voidable, 
a  man  is,  by  affinity,  brother   to  his         *  2  Kent  Com.  83,  84,  and  notes  ;  1 

wife's   sister,  yet,  upon  the   death   of  Bish.  Mar.  &  Div.  5th  ed.  §§312-320; 

his  wife,  he  may  lawfully  marry  her  Regina  v.  Chadwick,  12  Jur.  174  ;   Sut- 

sister."  ton  v.  Warren,  10  Met.  451  ;  Bonham 

2  Hill  V.  Good,  Vaugh.  302  ;  Harris  v.  Badgley,  2  Gilm.  G22  ;  Wightman  ?•. 
V.  Hicks,  2  Salk.  548;  Shelf.  Mar.  &  Wightman,  4  Johns.  Ch.  343;  Butler 
Div.  pp.  172,  178  ;  2  Kent  Com.  84  v.  Gastrin,  Gilb.  Ch.  156 ;  Burgess  v. 
note,  and  authorities  cited  ;  Reg.  v.  Burgess,  1  Hag.  Con.  884 ;  Blackmore 
Chadwick,  12  Jur.  174;  11  Q.  B.  173  ;  v.  Brider,  2  Phillim.  359. 

Pawson  V.  Brown,  41  L.  T.  n.  s.  339 ; 

29 


§  18  THE   DOMESTIC   RELATIONS.  [PART  II. 

such  impediment  now  recognized  in  England.^  But  by  local 
statutes  in  some  of  the  United  States,  intermarriage  has  long 
been  discouraged  between  persons  of  the  negro,  Indian,  and 
white  races.^  With  the  recent  extinction  of  slavery,  many  of 
these  laws  have  passed  into  oblivion,  together  with  such  as 
refused  to  allow  to  persons  held  in  bondage,  and  negroes  gen- 
erally, the  rights  of  husband  and  wife.  The  thirteenth  article 
of  amendment  to  the  Constitution  gives  Congress  power  to 
enforce  the  abolition  of  slavery  "  by  appropriate  legislation." 
As  to  persons  formerly  slaves,  there  are  now  acts  of  Congress 
which  legitimate  their  past  cohabitation,  and  enable  them  to 
drop  the  fetters  of  concubinage.  And  the  manifest  tendency 
of  the  day  is  towards  removing  all  legal  impediments  of  rank 
and  condition,  leaving  individual  tastes  and  social  manners 
to  impose  the  only  restrictions  of  this  nature.^ 

§  18.  Mental  Capacity  of  Parties  to  a  Marriage.  —  Thirds  as 
to  mental  capacity.  No  one  can  contract  a  valid  marriage 
unless  capable,  at  the  time,  of  giving  an  intelligent  consent. 
Hence  the  marriages  of  idiots,  lunatics,  and  all  others  who 
have  not  the  use  of  their  understanding,  are  now  treated  as 
null ;  though  the  rule  was  formerly  otherwise,  from,  perhaps, 
too  great  regard  to  the  sanctity  of  the  institution  in  the  Eng- 
lish ecclesiastical  courts.*  What  degree  of  insanity  will  amount 
to  disqualification  is  not  easily  determined  ;  so  varied  are  the 
manifestations  of  mental  disorder  at  the  present  day,  and  so 

1  1  Bish.  Mar  &  Div.  5th  efl.  §§  308-  riages  of  former  slaves,  &c.,see  Schoul. 
311 ;  1  Burge  Col.  &  For.  Laws,  138.  Hus.  &  Wife,  §  16. 

2  See  Bailey  v.  Fiske,  34  Me.  77 ;  As  to  statutes  formerly  forbidding 
State  V.  Hooper,  5  Ire.  201  ;  State  v.  marriage  between  a  Roman  Catholic 
Brady,  9  Humph.  74 ;  Barksliire  v.  and  Protestant,  see  Commonwealth  v 
State,  7  Ind.  389;  1  Bish.  Mar  &  Div.  Kenney,  120  Mass.  387  ;  Philadelphia 
5th  ed.  §§  154-163;  Schoul.  Hus.  &  i'.  Williamson,  10  Phila.  176.  The 
Wife,  §  16.  One  drop  less  than  one  statute  19  Geo.  II.  ch.  13,  to  this  effect, 
fourth  negro  blood  saves  from  the  taint  has  partial  reference  to  the  solemniza- 
in  Virginia.  McPherson  v.  Common-  tion  of  marriage  by  a  Popish  priest, 
wealth,  28  Gratt.  939.  These   are   disabilities  imposed   by  a 

*  Act  July   25,   1866,  c.    240;   Act  Protestant  parliament,  it  is  worth  ob- 

JuneG,  18G6,  c.  106,  §14.     And  see  15th  serving. 

Amendment  U.  S.  Const. ;  Stewart  v.         <  See   Lord    Stowell   in   Turner  v. 

Munchandler,  2  Bush  (Ky.),  278 ;  State  Meyers,  1  Hag.  Con.  414  ,  1  Bish.  Mar. 

V.  Harris,  63  N.  C.  1.     For  Southern  &  Div.  5th  ed.  §  125. 
statutes  which  now  legalize  the  mar- 

30 


CHAP.  I.]  MARRIAGE.  §  18 

gradually  does  mere  feebleness  of  intellect  shade  off  into 
hopeless  idiocy.  Certain  it  is  that  a  person  may  enter  into  a 
valid  marriage,  notwithstanding  he  has  a  mental  delusion  on 
certain  subjects,  is  eccentric  in  his  habits,  or  is  possessed  of  a 
morbid  temperament,  provided  he  displays  soundness  in  other 
respects  and  can  manage  his  own  affairs  with  ordinary  pru- 
dence and  skill.i  Every  case  stands  on  its  own  merits ;  but 
the  usual  test  applied  in  the  courts  is  that  of  fitness  for  the 
general  transactions  of  life  ,  for,  it  is  argued,  if  a  man  is 
incapable  of  entering  into  other  contracts,  neither  can  he  con- 
tract marriage.^  This  test  is  sufficiently  precise  for  most  pur- 
poses. Yet  we  apprehend  the  real  issue  is  whether  the  man 
is  capable  of  entering  understandingly  into  the  relation  of 
marriage  ;  for  natural  impulses  are  so  strong  that  a  man  may 
know  well  the  contract  he  assumes  by  the  act  of  marriage, 
while  he  is  not  equally  fit  to  enter  into  other  engagements. 
There  are  two  questions,  however :  first,  whether  the  party 
understands  the  marriage  contract ;  second,  whether  he  is  fit 
to  perform  understandingly  the  momentous  obligations  which 
that  contract  imposes ;  and  both  elements  might  well  enter 
into  the  consideration  of  each  case.  "  If  any  contract  more 
than  another,"  observes  Lord  Penzance  in  a  recent  English 
case,  "  is  capable  of  being  invalidated  on  the  ground  of  the 
insanity  of  either  of  the  contracting  parties,  it  should  be  the 
contract  of  marriage,  —  an  act  by  which  the  parties  bind 
their  property  and  their  persons  for  the  rest  of  their 
lives."  3 

Marriage  contracted  during  a  lucid  interval  is  at  law 
deemed  valid ;  ^  but  the  English  statute  provides  that  such 
marriages  are  void  when  a  commission  of  lunacy  has  once 

1  2  Kent  Com.  76 ;  Browning  v.  McElroy's  Case,  6  W.  &  S.  451.  See 
Reane,  2  Pliillim.  69;  1  Bish.  Mar.  &  1  Bish.  Mar.  &  Div.  §128;  Ex  parte 
Div.   5th   eJ.   §§  124-142 ;    Turner   v.     Glen,  4  Des.  546. 

Meyers,  1  Hag.  Con.  414 ;  4  Eng.  Ec.  »  Hancock  v.  Peaty,  L.  R.  1  P.  &  D. 

440';  1  Bl.  Com.  438,  439.  335,  341. 

2  Mudway  v.  Croft,  3  Curt.  Ec.  671 ;  *  Shelf.  Mar.  &  Div.  197  ;  1  Bish. 
Anon.,  4  Pick.  32 ;  Cole  v.  Cole,  5  Mar.  &  Div.  §  130 ;  Banker  v.  Banker, 
Sneed,  57  ;  Atkinson  v.  Medford,  46  63  N.  Y.  409 ;  Parker  v.  Parker,  6  Eng. 
Me.  510;  Ward  v.  Dulaney,  23  Miss.  Ec.  165;  Smith  v.  Smith,  47  Miss. 
410;    Elzey  v.  Elzev,   1   Houst.   808;  211. 

31 


§  18  THE   DOMESTIC   EELATIONS.  [PAET  II. 

been  taken  out  and  remains  unrevoked.^  Similar  provisions 
are  to  be  found  in  some  of  our  States.  On  the  other  hand, 
marriage  contracted  by  a  person  habitually  sane,  during  tem- 
porary insanity,  is  unquestionably  void,-  as  of  course  would 
be  any  marriage  contracted  by  one  at  the  time  permanently 
insane.^ 

Upon  the  principle  of  temporary  insanity,  drunkenness  inca- 
pacitates, if  carried  to  the  excess  of  delirium  tremens  ;  though 
not,  it  would  appear,  if  the  party  intoxicated  retains  sufficient 
reason  to  know  what  he  is  doing.^  Drunkenness  was  formerly 
held  a  bad  plea ;  for  the  common  law  permitted  no  one  to 
stultify  himself;  but  the  modern  rule  is  more  reasonable. 
Some  cases  require  that  fraud  or  unfair  advantage  should  be 
shown  ;  yet  the  better  opinion  is  that  even  this  is  unneces- 
sary.^ Deaf  and  dumb  persons  were  formerly  classed  as 
idiots ;  this  notion,  however,  is  exploded.  They  may  now 
contract  marriage  by  signs.®  Total  blindness,  or  mere  deaf- 
ness, of  course  constitutes  no  incapacity.  In  general,  we  may 
add,  that  the  disqualification  of  insanity  is  often  considered 
in  connection  with  fraud  or  undue  influence  exercised  by  or 
on  behalf  of  the  other  contracting  party,  over  a  weak  intel- 
lect, for  the  sake  of  a  fortune,  a  title,  or  some  other  worldly 
advantage.'' 

Suits  of  nullity,  brought  to  ascertain  the  facts  of  insanity, 
are  favored  by  law  both  in  England  and  America ;  and  mod- 
ern legislation  discountenances  all  collateral  disputes  involv- 


1  Stat.  15  Geo.  II.  c.  30,  (1742),  not  1  Bish.  Mar.  &  Div.  5th  ed.  §  131  ;  Gore 
part  of  the  common  law  in  this  country,  v.   Gibson,   13   M  «&    W.  623;  2  Kent 

2  Legeyt  v.  O'Brien,  Milward,  325 ;  Com.  451,  and  authorities  cited ;  Lord 
Parker  v.  Parker,  6  Eng.  Ec.  165.  Ellenborough,  in  Pitt  ('.  Sniitli,  3  Camp. 

3  See  Lord  Penzance  in  Hancock  v.  83;  Scott  v.  Paquet,  L.  R.  1  P.  C.  552. 
Peaty,  L.  R.  1  P.  &  D.  335  ;  Banker  v.  ^  See  1  Bish.  Mar.  &  Div.  5th  ed. 
Banker,  63  N.  Y.  409;  McAdam  v.  §§  131,  132,  and  conflicting  cases  cited; 
Walker,  1  Dow,  148  ;  1  Bish.  Mar.  &  Elzey  v.  Elzey,  1  Houst.  308 ;  Steuart 
Div.  §  130  ;  Smith  v.  Smith,  47  Miss.  v.  Robertson,  2  H.  L.  Sc.  494. 

211.     Cf.  Waymire  v.  Jetmore,  22  Ohio         6  i  Bish.  Mar.  &  Div.  5th  ed.  §  133, 

St.  271.  and  cases  cited  ;  1  Eras.  Dom.  Rel.  48; 

And  as  to  development  of  the  mal-  Dickenson  v.  Blisset,  1  Dickens,  268 ; 

ady  about  the  time  of  the  ceremony,  Harrod  i>.  Harrod,  1  Kay  &  Johns.  4. 
see  Schoul.  Hus.  &  Wife,  §  19.  ^  Fraud  as  an  element  of  disqualifi- 

*  Clement  v.  Mattison,  3  Rich.  93 ;  cation  will  be  considered  post. 

32 


CHAP,  r.]  MARRIAGE.  §  19 

ing  questions  so  painful  and  perplexing.  "  Though  marriage 
with  an  idiot  or  lunatic  be  absolutely  void,  and  no  sentence 
of  avoidance  be  absolutely  necessary,  "  says  Chancellor  Kent, 
"  yet,  as  well  for  the  sake  of  the  good  order  of  society  as  for 
the  peace  of  mind  of  all  persons  concerned,  it  is  expedient 
that  the  nullity  of  the  marriage  should  be  ascertained  and  de- 
clared by  the  decree  of  a  court  of  competent  jurisdiction." ' 
In  many  States  this  is  now  the  only  course  to  be  pursued, 
such  marriages  being  treated  as  voidable  and  not  void  ;  and 
the  insane  spouse  dying  before  proceedings  to  dissolve  the 
marriage  are  begun,  the  survivor  takes  all  the  benefits  of  a 
valid  marriage  accordingly .^ 

§  19.  Physical  Capacity  of  Parties  to  Marriage;  Impotence, 
&c.  —  Fourth.  The  question  of  physical  capacity  involves  an 
investigation  of  facts  even  more  painful  and  humiliating  than 
that  of  mental  capacity.  Yet  as  marriage  is  instituted,  in 
part  at  least,  for  the  indulgence  of  natural  cravings  and  with 
a  view  to  propagate  the  human  family,  sound  morality  de- 
mands that  the  proper  means  shall  not  be  wanting.  Our  law 
demands  that,  at  all  events,  the  sexual  desire  may  be  fully 
gratified.  Where  impotence  exists,  therefore,  there  can  be 
no  valid  marriage.  By  this  is  meant  simply  that  the  sexual 
organization  of  both  parties  shall  be  complete.  But  mere 
barrenness  or  incapacity  of  conception  constitutes  no  legal 
incapacity  in  England  and  the  United  States,  nor  can  a 
physical  defect  which  does  not  interfere  with  copulation  ;  nor 
indeed  any  disability  which  is  curable,  even  though  not  actu- 
ally cured,  unless  the  party  disabled  unreasonably  refuses  to 
submit  to  the  proper  remedies.^     Such  refusal,  however,  puts 

1  2  Kent  Com.  76.  8  i  Bish.  Mar.  &  Div.  §§  321-340, 

2  1  Bish.  Mar.  &  Div.  5th  ed.  §§  136-  and  cases  cited  ;  1  Eras.  Doni.  Rel.  53 ; 
142;  Goshen  v.  Richmond,  4  Allen,  B.  v.  B.,  28  E.  L.  &  Eq.  95;  1  Bl.  Com. 
458  ;  Hamaker  y.  Hamaker,  18  111.  137 ;  440,  n.,  by  Chitty  and  others;  Ayl. 
Williamson  v.  Williams,  3  Jones  Eq.  Parer.  227 ,  Devanbagh  v.  Devanbagh, 
446 ;  Wiser  v.  Lockwood,  42  Vt.  720 ;  6  Paige,  554 ;  Essex  i-.  Essex,  2  Howell 
Brown  v.  Westbrook,  27  Ga.  102;  St.  Tr.  786;  Briggs  r.  Morgan,  3  Phil- 
Stuckey  r.  Mathes,  31  N.  Y.  Supr.  lim.  325.  For  a  case  where  the  disa- 
461.  As  to  bringing  such  suits,  see,  bility  was  possibly  curable,  see  G.  u.  G., 
further,  1  Bish.  Mar.  &  Div.  §§  139-  L.  R.  2  P.  &  D.  287. 

142  ;  Schoul.  Hus.  &  Wife,  §  21. 

3  33 


§  20  THE   DOMESTIC   RELATIONS.  [PART  U. 

the  disabled  spouse  clearly  in  the  wrong. ^  The  refusal  of 
carnal  intercourse  by  a  healthy  spouse  is  quite  a  different 
matter,  and  gives  rise  to  other  inquiries  under  the  head  of 
divorce  ;  ^  nor  certainly  can  physical  incapacity  arising  from 
some  cause  subsequent  to  marriage  be  referred  to  the  present 
subject,  the  question  being  as  to  incapacity  at  the  date  of 
marriafje.^ 

The  reader  will  find  Dr.  Lushington's  opinion  in  the  lead- 
ing case  of  Deane  v.  Aveling^  sufficiently  suggestive  as  to  the 
extent  of  malformation  which  invalidates  a  marriage  on  the 
ground  of  physical  incapacity.  It  will  be  observed  that  this 
case  establishes  a  principle  which  later  cases  do  not  under- 
mine, namely,  that  it  is  capacity  for  fulfilling  the  conditions 
of  copulation,  and  not  of  procreation,  that  our  own  law  re- 
gards. We  may  add  that,  with  the  rapid  progress  of  medical 
science  during  the  present  century,  cases  of  absolute  and  in- 
curable impotence  are  happily  diminishing  in  number.^ 

§  20.  Disqualification  of  Infancy.  —  Fifth.  Infancy  may  be 
an  impediment  to  marriage  ;  but  only  so  far,  on  principle,  as 
the  marrying  party,  by  reason  of  imperfect  mental  and  physi- 
cal development,  may  be  brought  within  the  reason  of  the 
last  two  rules.  Hence  we  find  that  infancy  is  not  a  bar  to 
marriage  to  the  same  extent  as  in  ordinary  contracts ;  since 
minors  cannot  repudiate  their  choice  of  husband  or  wife  on 
reaching  majority.  Not  that  marriage  calls  for  less  discrimi- 
nation, for  it  carries  with  it  consequences  far  beyond  all  other 
contracts,  involving  property  rights  of  the  gravest  import ; 
but  because  public  policy  must  protect  the  marriage  institu- 
tion against  the  reckless  imprudence  of  individuals.  A  cer- 
tain period  is  established,  called  the  age  of  consent,  which  in 
England  is  fixed  at  fourteen  for  males  and  twelve  for  females, 

1  H.  V.  P.,  L.  R.  3  P.  &  D.  126.  1  P.  &  D.  31  ;  T.  v.  D.,  L.  R.  1  P.  &  D. 

2  See,  further,  Sclioul.  Hus.  &  Wife,  127 ;  Carll  v.  Prince,  L.  R.  1  Ex.  246. 
§  22;  Cowles  v.  Cowles,  112  Mass.  298.  But  with  modern   facilities,  including 

3  See  Morrell  v.  Morreil,  24  N.  Y,  tlie  right  of  parties  to  testify  in  tiieir 
Supr.  324.  own  suits,  sucli  cases  appear  to  be  on 

*  1  Robertson,  279,  298.     And  see  the   increase  in   the   courts   of   Great 

recent  case  of  U.  v.  J.,  L.  R.  1  P.  &  D.  Britain.     See  1  Bish.  §  331  ;   Schoul. 

460.  Hus.  &  Wife,  §  23,  as  to  sentences  of 

^  See  recent  cases :  T.  v.  M.,  L.  R.  nullity  in  such  cases. 

34 


CHAP.  I.]  MARRIAGE.  §  20 

a  rule  adopted  from  the  Roman  law,  but  which,  in  this  coun- 
try, varies  all  the  way  from  fourteen  to  eighteen  for  males 
and  twelve  to  sixteen  for  females,  according  to  local  statutes ; 
differences  of  climate  and  physical  temperament  contributing, 
doubtless,  to  make  the  rule  of  nature,  in  this  respect,  a  fluc- 
tuating one.^  Marriages  without  the  age  of  consent  are  as 
binding  as  those  of  adults  ;  marriages  within  such  age  may  be 
avoided  by  either  party  on  reaching  the  period  tixed  by  law. 
And  even  though  one  of  the  parties  was  of  suitable  age  and 
the  other  too  3^oung,  at  the  time  of  marriage,  yet  the  former, 
it  appears,  may  disaffirm  as  well  as  the  latter.^  Herein  is 
observed  a  departure  from  that  principle  of  law,  that  an  in- 
fant may  avoid  his  contract  while  the  adult  remains  bound ; 
it  is  a  concession  which  the  law  makes  in  favor  of  mutuality 
in  the  marriage  compacts.  Marriages  celebrated  before  both 
parties  have  reached  the  age  of  consent  may  be  disaffirmed  in 
season,  either  with  or  without  a  judicial  sentence.  When 
the  age  of  consent  is  reached,  no  new  ceremony  is  requisite 
to  complete  the  marriage  at  the  common  law  ;  but  election 
to  afl&rm  will  then  be  inferred  from  circumstances,  such  as 
continued  intercourse,  and  even  slight  acts  may  suffice  to 
show  the  intention  of  the  parties.  If  they  then  choose  to 
remain  husband  and  wife,  they  are  bound  for  ever.  Dis- 
affirmance, on  the  other  hand,  may  be  either  with  or 
without  a  judicial  sentence."  Marriage  within  the  age  of 
consent  seems  therefore  to  be  neither  strictly  void  nor 
strictly  voidable,  but  rather  inchoate  and  imperfect ;  ^  with, 

1  See  2  Kent  Com.  79,  notes,  show-  that  a  party  of  competent  age  may  dis- 
ing  the  periods  fixed  in  different  States  affirm  equally  with  the  party  incompe- 
as  the  age  of  consent.    In  the  old  States  tent.     Peo|)le  r.  Slack,  15  Mich.  193. 
the    common-law    rule    generally   pre-  ^  1  Bish.  Mar.  &  Div.  §  150. 

vails.      In   Ohio,   Indiana,   and    other  *  Co.  Litt.  33  a ;  2  Kent  Com.  78, 

Western  States,  the  age  of  consent  is  79 ;  1  Bish.  Mar.  &  Div.  5th  ed.  §§  143- 

raised  to  eighteen  for  males,  and  four-  153,  and  cases  cited;  1  Bl.  Com.  436; 

teen  for  females.     See  also  Bennett  v.  1  Fras.  Dom.  Rel.  42 ;  Parton  v.  Her- 

Sniith,  21  Barb.  439,  as  to  the  power  vey,  1  Gray,  119 ;  Fitzpatrick  v.  Fitz- 

of  the  New  York  courts  to  annul  mar-  patrick,   6   Nev.   63.     See   Shafher  v. 

riages  with  persons  under  age.  State,    20    Ohio,    1,    contra,    Goodwin 

2  Co.  Litt.  79,  and  Harg.  n.  45 ;  1  v.  Thompson,  2  Iowa,  329  ;  Aymar  v. 
East  P.  C.  468;  1  Bish.  Mar.  &  Div.  Eoflf,  3  Johns.  Ch.  49,  as  to  the  invalid- 
5th  ed.  §  149.     But  it   is   not  certain  ity  of  such  marriages  unless  confirmed 

35 


§  21  THE  DOMESTIC  EELATIONS.  [PAKT  II. 

however,  a  reservation  by  the  ecclesiastical  law  as  to  mar- 
riage with  an  infant  below  seven  years,  which  is  treated  as 
altogether  null.^ 

§  21.  Disqualification  of  Prior  Marriage  Undissolved;  Poly- 
gamy; Bigamy.  —  Sixth,  as  to  the  impediment  of  prior  mar- 
riage undissolved.  It  is  a  well-established  rule  in  civilized 
countries  that  marriage  between  parties,  one  of  whom  is 
bound  hj  an  existing  marriage  tie,  is  not  only  void,  but  sub- 
jects the  offenders  to  criminal  prosecution.^  Polygamy,  or 
bigamy  as  it  is  often  termed,  —  since  the  common  law  of  Eng- 
land could  scarcely  conceive  of  such  conjunctions  carried 
beyond  a  double  marriage,  —  is  discarded  by  all  Christian 
communities.  It  is  tolerated,  though  not  sanctioned,  in  cer- 
tain territory  of  the  United  States.  The  fundamental  doc- 
trine of  Christian  marriage  is  that  no  length  of  separation  can 
dissolve  the  union,  so  long  as  both  parties  are  actually  living, 
even  though  lapse  of  time  should  raise  a  reasonable  supposi- 
tion of  death.  But  to  render  the  second  marriage  void  at 
law,  the  first  should  have  been  valid  in  all  respects.^  Some 
of  the  harsher  features  of  the  old  law  have  been  softened  in 
our  own  legislation  ;  and  statutes  are  not  uncommon  which 
possibly  extend  facilities  for  divorce  from  the  old  relation, 
and  in  any  event  protect  the  offspring  of  a  new  marriage  con- 
tracted erroneously,  but  in  good  faith,  by  parties  who  had 
reason  to  believe  a  former  spouse  dead.^  So,  too,  polygamy 
in  fact  is  relieved  of  its  penal  consequences  as  concerns  par- 
ties not  guilty  of  polygamy  in  intention  ;  but  a  certain  period 
must  elapse  —  usually  seven  years  —  before  death  can  be  pre- 
sumed from  one's  mere  continuous  absence  without  being 
heard  from.  Such  was  one  of  the  provisions  in  the  English 
statute  passed  to  make  bigamy  a  civil  offence,  in  the  reign  of 

by  cohabitation  after  reaching  the  stat-  cited  ;  Shelf.  Mar.  &>  Div.  224  ;  Hyde 

utory  age.     Local  statutes  affect  this  v.  Hyde,  L.  K.  1  P.  &  D.  130. 

whole  subject.  ^  Bruce  v.  Burke,  2  Add.  Ec.  471  ; 

1  2  Burn.   Ec.   Law,  434;   1   Bish.  2  Eng.  Ec.  381;  Reg.  v.  Cliadwick,  12 
Mar.  &  Div.  §  147.  Jur.  174 ;  Patterson  v.  Gaines,  6  How. 

2  Cro.   Eh'z.   858;    1   Salk.   121;    2  (U.  S.)  550. 

Kent  Com.  79,  and  notes  ;  1  Bish.  Mar.  ■«  See  2  N.  Y.  Rev.  Stat.  p.  139,  §§  6, 
&   Div.    §§    296-303,    and    authorities     7  ;  Mass.  Gen.  Sts.  c.  107,  §§  4,  30. 

36 


CHAP.  I.]  MARRIAGE.  §  22 

James  I.,^  which  also  exempted  from  punishment  for  bigamy- 
persons  remarried,  during  the  lifetime  of  the  former  spouse, 
after  a  divorce,  sentence  of  nullity,  or  disaffirmance  on  reach- 
ing age  of  consent.  Similar  statutes  for  the  punishment  of 
bigamy,  with  similar  reservations,  are  enacted  in  this  country  ; 
but  in  England  and  the  United  States  some  defects  of  the 
original  legislation  are  now  cured,  and  divorce  from  bed  and 
board  would  not  exempt  an  offender  from  prosecution.^  Polyg- 
amy, with  such  exceptions,  remains  an  indictable  offence. 

One  of  its  less  obvious  evils  —  though  not  the  least  im- 
portant when  polygamy  is  regarded  as  a  legalized  institution 
in  a  free  country  —  is  that  the  patriarchal  principle  which  it 
introduces  is  thoroughly  hostile  to  free  institutions ;  this  fact 
was  pointed  out  many  years  ago  by  one  of  our  best  writers  on 
political  ethics.^ 

Nor  is  a  new  marriage  entered  into  by  one  spouse  in  good 
faith,  and  in  full  but  erroneous  belief  that  the  other  spouse 
is  dead,  valid  even  after  the  lapse  of  the  statutory  absence ; 
such  parties  are  not  free  to  marry  again,  but  only  relieved  of 
the  worst  consequences.* 

§  22.  Same  Subject ;  Impediments  foUoTving  Divorce.  —  Under 
this  same  head  may  be  considered  a  disqualification  intro- 
duced into  some  parts  of  this  country  by  legislative  enact- 

1  Stat.  1  Jac.  I.  c.  11,  1604.  See  Schoul.  Hus.  &  Wife,  §  25 ;  also  "  Big- 
Queen  V.  Lumley,  L.  R.  1  C.  C.  196;  amy  "  in  Bishop  or  Wliarton  on  Crirui- 
Queen  v.  Curgerwen,  L.  R.  1  C.  C.  1.  nal  Law. 

^  In   New  York  the   period  of  ab-         *  Glass  v.  Glass,  114  Mass.  56-3,  and 

sence    is   five   years ;   in   Ohio,   three  cases   cited ;    Williamson   v.   Parisien, 

years;  in  Massachusetts,  seven  years,  1  Johns.  Ch.  389;  Miles  r.  Chilton,! 

but  with  a   special   relaxation   of  the  Robertson,  G84 ;    Spicer  v.   Spicer,  16 

penalty.    Still  further,  see  2  Kent  Com.  Abb.  Pr.  n.  s.  112  ;  1  Bish.  Mar.  &  Div. 

79,  and  notes.     See  also  Stats.  9  Geo.  §  299.     Such  marriage,  under  Massa- 

IV.  c.  31 ;  24  &  25  Vict.  c.  100  ;  1  Bish.  chusetts  statutes,  may  be  annulled  by  a 

§  297.     Legitimating  statutes  are  to  be  sentence  containing  (in  order  to  make 

found  in  numerous  States  on  behalf  of  children  begotten  before  thecommence- 

the  offspring  of  innocent  marriages  of  ment  of  the  suit  legitimate)  the  state- 

this  kind.     1  Bish.  §  .^Ol ;  cases  wfra.  ment  that  it  was  contracted  in  good 

3  2  Lieber  Pol.  Ethics,  9,  cited  in  faith  and  with  the  full  belief  of  the  par- 
note  to  2  Kent  Com.  81.  ties  that  the  absent  spouse  was  dead 

As  to  prosecutions  for  bigamy,  see  Glass  v.  Glass,  supra.     Lawful  compe- 

Kopke  V.  People,  43  Mich.  41 ;  Reeves  tence  to  marry  again  results,  liowever, 

I'.  Reeves,  54  111.  3-32 ;  Queen  v.  Allen,  imder  some  local  statutes,  from  such 

L.  R.  1  C  C.  367,  and  other  cases  cited  absence.  Strode  i'.  Strode,  3  Bush,  227. 

37 


§  23  THE   DOMESTIC   IlELATIONS.  [PART  II. 

ments ;  namely,  the  impediment  which  follows  divorce.^  A 
divorce  a  vinculo  should  on  general  principles  leave  both 
parties  free  to  marry  again.  But  such  is  not  always  the  case. 
Thus,  in  Kentucky,  the  person  injured  may  not  marry  again 
before  the  expiration  of  two  years  from  the  decree  of  disso- 
lution.2  And  in  several  States  the  guilty  party  is  prohibited 
from  marrying  again  during  the  lifetime  of  the  innocent 
spouse  divorced,  —  a  provision  of  law  seemingly  more  judi- 
cious to  apply  m  terrorem  by  way  of  prevention  than  as  a 
suitable  method  of  punishment.^  In  Scotland  there  is  a 
peculiar,  but  not  unreasonable  law,  which  forbids  the  guilty 
party  after  divorce  from  marrying  the  particeps  erimmis  ;  this 
was  framed  evidently  to  defeat  collusive  practices  between 
persons  desiring  to  put  away  an  outstanding  obstacle  to  their 
own  union.^ 

§  23.  Force,  Fraud,  and  Error,  in  Marriage. — Seventh.  All 
marriages  procured  by  force  or  fraud,  or  involving  palpable 
error,  are  void  ;  for  here  the  element  of  mutual  consent  is 
wanting,  so  essential  to  every  contract.^  The  law  treats  a 
matrimonial  union  of  this  kind  as  absolutely  void  ah  initio^ 
and  permits  its  validity  to  be  questioned  in  any  court ;  at  the 
option,  however,  of  the  injured  party,  who  may  elect  to  abide 
by  the  consequences  when  left  free  to  give  or  withhold  assent. 
Force  implies  a  physical  constraint  of  the  will ;  fraud,  some 
deception  practised,  whereby  an  unnatural  state  of  the  will 
is  brought  about.^  Cases  of  palpable  error,  which  are  very 
rare,  usually  contain  one  or  both  of  these  ingredients. 

What  amount  of  force  is  suflBcient  to  invalidate  a  marriage 
is  a  question  of  circumstances.  Evidently  the  same  test  could 
not  apply  to  the  mature  and  the  immature,  to  the  strong  and 
the  weak,  to  man  and  to  woman.     The  general  rule  is  that 

1  1  Bish.  Mar.  &  Div,  5th  ed.  §§  304-  Morris,  2  Hag.  Con.  423;  4  Eng.  Ec. 
307;  Schoul.  Hus  &  Wife,  §  26.  575;  Countess  of   Portsmouth  v.  Earl 

2  Cox  V.  Combs,  8  B.  Monr.  2.31.  of  Portsmouth,  1  Hag.  Ec.  355 ;  3  Eng. 

3  See  Parke  v.  Barron,  20  Ga.  702  ;  Ec.  154;  Scott  r.  Shufeldt,  5  Paige,  43; 
Clark  V.  Cassidy,  62  Ga.  407 ;  Kinnier  Dalrymplc  v.  Dalrymple,  2  Hag.  Con. 
r.  Kinnier,  53  Barb.  454.  54,   104;   4   Eng.   Ec*   485;   Keyes   v. 

*  1  Eras.  Dom.  Rel.  82.  Keyes,  2  Fost.  553. 

5  2  Kent  Com.  76,  77;  1  Bish.  Mar.         6  1  Eras.  Dom.  Bel.  2?A. 
&  Div.  5th  ed.  §§  164-215  ;  Harford  v. 

38 


CHAP.  I.]  MARRIAGE.  §  23 

such  amount  of  force  as  might  naturally  serve  to  overcome 
one's  free  volition  and  inspire  terror  will  render  the  marriage 
null.^  And  where  the  party  employing  force  sustains  a 
superior  relation  of  influence,  or  a  post  of  confidence  afford- 
ing him  opportunities  which  he  chooses  to  abuse,  this  circum- 
stance carries  great  weight.  Thus  in  Harford  v,  Morria, 
where  one  of  the  guardians  of  a  young  and  timid  school-girl, 
having  great  influence  and  authority  over  her,  took  her  to  a 
foreign  country,  hurried  her  from  place  to  place,  and  then 
married  her  without  her  free  consent,  the  marriage  was  set 
aside  ;  ^  and  similar  consequences  attended  more  recently  the 
marriage  of  a  young  school-girl  to  her  father's  coachman,  who 
pursued  his  scheme  while  taking  her  out  to  ride.^ 

So  marriage  by  compulsion  is  procured  when  one  under 
illegal  arrest  is  forced  to  marry ;  and  so  probably,  though  the 
arrest  was  legal,  if  malicious  circumstances  are  manifest.^ 
But  if  a  single  man  under  legal  arrest,  by  advice  of  the  officer 
or  magistrate,  marries  the  woman  whom  he  has  seduced  or 
got  with  bastard  offspring,  in  order  to  escape  prosecution,  the 
law  will  favor  a  presumption  of  honest  repentance  on  his 
part,  and  hold  him  bound  ;^  substantial  justice  being  thereby 
done  to  the  utmost,  and  the  lesser  scandal  to  society  per- 
mitted in  order  to  avert  the  greater. 

As  to  fraud,  in  order  to  vitiate  a  marriage,  it  should  go  to 
the  very  essence  of  the  contract.  But  what  constitutes  this 
essence  ?     The  marriage  relation  is  not  to  be  disturbed  for 

1  Shelf.  Mar.  &  Div.  213;  1  Bish.  murrer.  Here  the  man  claimed  that 
Mar.  &  Div.  5th  ed.  §  211.  the  woman's  brother  seized  him  on  the 

2  2  Hag.  Con.  423;  4  Eng.  Ec.  675.  highway,  and  forced  him  to  marry  her, 

3  Lyndon  v.  Lyndon,  69  111.  43.  and  that  as  soon  as  the  duress  was  over 

4  Keg.  V.  Orgill,  9  Car.  &  P.  80 ;  he  escaped ;  also  that  the  woman  had  a 
Soule  V.  Bonney,  37  Me.  128 ;  Collins  v.  child  three  months  afterwards.  Duress 
Collins,  2  Brews.  (Pa.)  515;  Barton  i;.  was  claimed  by  the  husband  in  Vroom 
Morris,  15  Ohio,  408;  Benton  v.  Ben-  v.  Marsli,  29  N.J.  Eq.  15,  but  the  court 
ton,  1  Day,  111;  1  Bish.  Mar.  &  Div.  allowed  alimony /^em/eHte/ite  to  the  wife, 
5th  ed.  §  212.  she  denying  the  charge. 

A  man  is  sometimes  forced  into  a         ^  Jackson  v.  Winne,   7  Wend.  47 ; 

marriage  which  ought  to  be  annulled.  Sickles  v.  Carson,  26   N.  J.  Eq.  440 ; 

See  Bassett  v.  Bassett,  9  Bush,  696.    In  Honnett  v.  Honnett,  33  Ark.  156  ;  State 

Willard  v.  Willard,  6  Baxter,  297,  be-  v.  Davis,  79  N.  C.  603  ;  Johns  v.  Johns, 

fore  testimony  was  taken,  an  allegation  44  Tex.  40;  Williams  v.  State,  44  Ala. 

of  duress  was    sustained    against   de-  24. 

89 


§  23  THE   DOMESTIC   RELATIONS.  [PART   II. 

trifles,  nor  can  the  cumbrous  machinery  of  the  courts  be 
brought  to  bear  upon  impalpable  things.  The  law,  it  has 
been  well  observed,  makes  no  provision  for  the  relief  of  a 
blind  credulity,  however  it  may  have  been  produced.^  Fraud- 
ulent misrepresentations  of  one  party  as  to  birth,  social  posi- 
tion, fortune,  good  health,  and  temperament,  cannot  there- 
fore vitiate  the  contract.  Caveat  emptor  is  the  harsh  but 
necessary  maxim  of  the  law.  Love,  however  indispensable  in 
an  sesthetic  sense,  is  by  no  means  a  legal  essential  to  marriage ; 
simply  because  it  cannot  be  weighed  in  the  scales  of  justice. 
So,  too,  all  such  matters  are  peculiarly  within  the  knowledge 
of  the  parties  themselves,  and  they  are  put  upon  reasonable 
inquiry. 

Not  even  does  the  concealment  of  previous  unchaste  and 
immoral  behavior  in  general  vitiate  a  marriage  ;  for  although 
this  seems  to  strike  into  the  essence  of  the  contract,  yet  pub- 
lic policy  pronounces  otherwise,  and  opens  marriage  as  the 
gateway  to  repentance  and  virtue.^  If  the  profligate  con- 
tinue a  profligate  after  marriage,  the  divorce  laws  afford  a 
means  of  escape  to  the  deluded  victim.  Still,  as  this  doc- 
trine seems  to  bear  hard  upon  innocent  persons  marrying  in 
good  faith  and  with  misplaced  confidence,  it  is  applied  not 
without  some  limitations.  Thus  it  is  held  in  Massachusetts 
that  where  a  woman,  pregnant  by  another  man  at  the  time  of 
the  nuptials,  bears  a  child  soon  after  to  an  innocent  husl)and, 
the  marriage  may  be  avoided  by  him  ;  for  she  has  thereby  not 
only  inflicted  upon  him,  by  deception,  the  grossest  possible 
moral  injury,  but  subjected  them  both  to  scandal  and  ill-re- 
pute.^ The  same  court,  however,  has  taken  heed  not  to  press 
this  exception  far,  refusing  to  allow  one  to  shake  off  the  obli- 
gations he  has  contracted  with  a  woman  whom  he  knew  before 


1  Lord  Stowell,  in  Wakefield  v.  Mac-  Best,  1  Add.  Ec  411  ;  2  Eng.  Ec.  158 ; 
ka.y,  1  Phillim.  137 ;  2  Kent  Com.  77  ;  Leavitt  v.  Leavitt,  13  Mich.  452  ;  Vizier 
1    Bish.  Mar.  &  Div.  5th  ed,  §§  166-  v  Still,  SI  Iowa,  107. 

168;  Schoul.  Hus.  &  Wife,  §  530.  ^  Reynolds  v.  Reynolds,  3  Allen,  605. 

2  1  Bish.  Mar.  &  Div.  §§  170,  179;  See  also  Baker  v.  Baker,  13  Cal.  87  ; 
Rogers  Ec.  Law,  2d  ed.  644 ;  1  Eras.  Montgomery  v.  Montgomery,  3  Barb. 
Dom.  Rel.  231 ;  Ayl.  Parer.  362,  363 ;  Ch.  132 ;  Morris  v.  Morris,  Wright, 
Swinb.  Spousals,  2d  ed.  152;   Best  v.  630. 

40 


CHAP.  I.]  MARRIAGE.  §  23 

marriage  to  be  with  child,  and  in  fact  had  himself  debauched, 
notwitlistanding  he  married  upon  the  faith  of  her  previous 
assurances  that  her  pregnancy  was  by  him,  and  was  unde- 
ceived by  the  time  the  child  came  into  the  world. ^  And, 
furthermore,  if  a  man  marries  any  woman  whom  he  knows 
to  be  unchaste  and  pregnant,  it  is  his  own  folly  if  he  places 
implicit  confidence  in  any  of  her  statements.^  But  whenever 
an  innocent  man  marries  a  woman,  supposing  her,  with  reason, 
to  be  virtuous,  and  she  conceals  her  pregnancy  from  him,  the 
subsequent  production  of  another  man's  child  so  unpleasantly 
compKcates  the  marriage  relation  that  he  ought  to  be  allowed 
his  exit  if  he  so  desires,  both  in  justice  to  himself  and  because 
the  woman  knew  the  risk  she  ran  of  bringing  the  parental 
relation  to  shame  by  marrying,  and  chose  to  incur  it.  In 
short,  while  marriage  may  be  accepted  by  any  one  whose 
past  life  has  been  dissolute,  as  the  portal  to  a  new  and  honest 
career,  for  which  reason  concealment  of  the  past  cannot 
legally  be  predicated  of  either  party  as  an  essential  fraud,  we 
apprehend  that  the  woman  who  brings  surreptitiously  to  the 
marriage  bed  the  incumbrance  of  some  outside  illicit  connec- 
tion introduces  a  disqualification  to  the  union  as  real  as  the 
physical  impotence  of  a  man  would  be,  resulting  from  his 
own  lasciviousness. 

As  to  error,  it  may  be  said,  as  in  fraud,  that  the  error 
should  reach  the  essentials ;  and  Chancellor  Kent  justly 
observes  that  it  would  be  difficult  to  find  a  case  where  sim- 
ple error,  without  some  other  element,  would  be  permitted  to 
vacate  a  marriage.^  There  is  an  English  case  in  point,  where 
a  man  courted  and  afterwards  married  a  young  lady,  believing 
her  to  be  a  certain  rich  widow,  whom  he  had  known  only  by 
reputation.  She  and  her  friends  had  countenanced  the  de- 
ception.    It  was  held,  nevertheless,  that  the  marriage  must 

1  Foss  y.  Foss,  12  Allen,  26.    It  was         2  Crehore    v.    Crehore,    97    Mass. 

here  suggested  by  the  court  that  the  830. 

man  might  have  taken  medical  or  ^  2  Kent  Com.  77.  See  Lord  Camp- 
other  advice  before  marriage,  instead  bell,  in  Reg.  v.  Millis,  10  CI.  &  F.  534, 
of  relying  upon  the  woman's  word.  785 ;  1  Bish.  Mar.  &  Div.  5th  ed  §  207 ; 
As  to  such  statute  cause  of  divorce,  Clowes  v.  Clowes,  3  Curt.  Ec.  185, 
see  Schoul.  Hus.  &  Wife.  191. 

41 


§  24  THE   DOMESTIC    RELATIONS.  [PART  U. 

stand.^  But  the  palpable  substitution  of  some  other  indi- 
vidual for  the  person  actually  accepted  and  intended  for  mar- 
riage may  properly  be  repudiated  by  the  victim  to  the  fraud.^ 
And  some  cases  have  gone  even  farther,  as  where  a  scoundrel 
palms  himself  off  as  a  certain  individual  of  good  repute;^ 
though,  generally  speaking,  deception  as  to  name  is  not  re- 
garded as  more  fatal  than  deception  as  to  character  or  fortune. 

The  element  of  imperfect  consent  is  readily  associated  with 
cases  of  the  present  class.  Thus,  if  a  person  is  unwittingly 
entrapped  into  a  marriage  ceremony,  not  meaning  nor  afford- 
ing reason  for  the  other  party  to  believe  that  it  should  be 
binding,  this  marriage  may  be  repudiated.*  And  in  general 
a  mock  marriage  in  jest  is  no  marriage.^ 

§  24.  Force,  Fraud,  and  Error  :  Subject  continued.  —  In  most 
of  the  reported  cases  of  force,  fraud,  and  error,  two  or  more 
of  these  elements  are  united  ;  and  frequently  another  distinct 
impediment  appears,  such  as  tender  years  on  the  part  of  the 
injured  party  ;  or,  with  regard  to  the  offender,  the  suppression 
of  material  facts  relative  to  some  former  marriage,  or  to  his 
own  mental  or  physical  incapacity  ;  or  some  other  cause  of 
nullity  is  shown  by  the  evidence.  In  the  reported  cases, 
where  the  complainant  was  successful,  some  unprincipled  man 
has  generally  sought  to  gain  undue  advantages  from  the  per- 
son and  fortunes  of  one  whose  feebler  will  rendered  her  an 
easy  prey ;  it  rarely,  if  ever,  appears  that  such  force  or  fraud 
led  to  a  reasonable  and  well-assorted  match.  Such  unequal 
alliances  need  find  favor  from  no  tribunal.^ 

All  marriages  of  this  sort  are  binding  without  further  cere- 
mony, provided  the  injured  party  sees  fit  to  affirm  it  after^all 
constraint  is  removed,  or,  in  other  words,  to  perfect  the  con- 

1  FeilJing's  Case,  cited  in  Burke's  s  McClurg  v.  Terry,  21  N.  J.  Eq.  226. 
Celebrated  Trials,  G3,  78,  and  in  1  Bish.     See  post,  §  26. 

Mar.  &  Div.  5tii  ed.  §  204.  ^  See   Heffer  v.  Heffer,  3  M.  &  S. 

2  Fiction  supplies  such  instances,  as  2G5 ;  Rex  v.  Burton-upon-Trent,  3  M. 
in  Scott's  novel,  St.  Ronan's  Well.  &  S.  537  ;  Swift  w.  Kelly,  3  Knapp,  257; 
And  see  2  Kent  Com.  77;  1  Bish.  Nace  v.  Boyer,  6  Casey,  99;  Robert- 
§  207.  son   V.   Cole,   12   Tex.  356  ;    Cameron 

3  Rex  V.  Burton,  3  M.  &  S.  537.  v.  Malcolm,  Mor.  12586,  cited  1  Bish. 
*  Clark  V.  Field,  13  Vt.  460.  §  199 ;  Lyndon  v.  Lyndon,  69  111.  43  ; 

Powell  V.  Cobb,  3  Jones  Eq.  456. 

42 


CHAP.  I.]  MARKIAGE.  §  25 

sent ;  but  no  such  freedom  of  choice  seems  to  be  left  to  the 
offending  party.  Hence,  this  sort  of  marriage  seems  neither 
void  nor  voidable  in  the  legal  acceptation ;  but  rather  in- 
choate or  incomplete  until  ratified,  though  void  if  the  injured 
choose  so  to  treat  it.  Where  consummation  never  followed 
the  nuptials,  the  courts  are  the  more  readily  disposed  to  set 
aside  the  match ;  ^  but  in  any  event  copulation,  with  knowl- 
edge of  the  fraud,  and  after  removal  of  all  constraint,  is  an 
effectual  bar  to  relief.^ 

The  issue,  we  may  add,  is  between  the  offender  and  the  in- 
jured party,  and  third  persons  have  no  right  to  interfere,  al- 
though it  be  alleged  that  there  was  intent  to  defraud  them  in 
their  own  property  interests.^  In  fact,  marriage  stands  or  falls 
by  public  permission  with  reference  only  to  the  marriage  par- 
ties ;  and  wherever  they  have  legally  assumed  the  relation  as 
one  agreeable  to  themselves,  outsiders  cannot  meddle  with  the 
status  from  outside  considerations.  Where,  too,  a  marriage 
has  been  effected  through  the  fraudulent  conspiracy  of  third 
persons,  the  rule  is  that,  unless  one  of  the  contracting  parties 
is  cognizant  of  the  fraud,  the  marriage  is  perfect ;  but,  if  cog- 
nizant, it  is  to  be  deemed  the  fraud  of  such  party  and  treated 
accordingly.* 

§  25.  Essential  of  Marriage  Celebration.  —  Eighth.  We  are 
now  brought  to  the  important  subject  of  the  formal  marriage 
celebration.  Here  there  is  a  wide  difference  noticeable  be- 
tween general  principles  and  established  practice.  We  are 
to  consider  this  topic,  then,  in  two  separate  aspects:  (1)  as 
to  marriage  observance  in  the  absence  of  civil  requirements  ; 
(2)  as  to  marriage  observance  under  the  statutes  now  in 
force  in  England  and  America. 

It  is  to  be  premised,  however,  by  way  of  enlarging  upon 

1  Lyndon  v.  Lyndon,  69  111.  43 ;  Rob-  ^  McKinney  v.  Clarke,  2  Swan, 
ertson  v.  Cole,  12  Tex.  356 ;  Cameron    321. 

V.  Malcolm,  supra.  i  Sullivan  v.  Sullivan,  2  Hag.  Con. 

2  1  Bish.  Mar.  &  Div.  5th  ed,  §§  214,  238,  246  ;  Rex  v.  Minsliull,  1  Nev.  &  M. 
215;  1  Burge  Col.  &  For.  Laws,  137;  277  ;  1  Bish.  Mar.  &  Div.  §  173,  et  seq. ; 
1  Eras.  Dom.  Rel.  229 ;  Scott  v.  Shu-  Barnes  v.  Wyethe,  28  Vt.  41 ;  Bassett 
feldt,  5  Paige,  43  ;  Leavitt  v.  Leavitt,  v.  Bassett,  9  I5usli,  09(3. 

13  Mich.  452 ;  Hampstead  v.  Plaistow, 
49  N.  n.  84. 

43 


§  26  THE   DOMESTIC   KELATIONS.  [PART   II. 

the  idea  of  perfect  and  imperfect  consent  suggested  under  the 
last  head,  that  some  form  of  marriage  promise,  some  cere- 
mony, however  slight,  has  always  been  deemed  essential  to 
the  validity  of  marriage.  The  common  language  of  the 
books  is,  that,  in  the  absence  of  civil  regulations  to  the  con- 
trary, marriage  is  a  contract,  and  nothing  but  mutual  consent 
is  required.  And  the  old  maxim  of  the  Roman  law  is  quoted 
to  support  this  view :  Nujjtias  non  concubitus,  sed  consensus, 
faeiO  But  is  there  not  an  ambiguity  in  the  use  of  such  lan- 
guage ?  For  it  is  material  to  ask  whether  consensus,  or  con- 
sent, is  used  in  the  sense  of  simple  volition  or  an  expression  of 
volition.  We  maintain  that  the  latter  is  the  correct  legal 
view  ;  and  that  it  should  be  said  that  the  law  requires  in  such 
cases  a  simple  expression  of  lyiutual  consent,  and  no  more.  For 
the  very  definition  of  marriage  implies  that  there  should  be 
not  only  the  consenting  mind,  but  an  expression  of  the  con- 
senting mind,  by  words  or  signs,  which  expression  in  proper 
form  constitutes  in  fact  the  marriage  agreement.  It  is  in  this 
sense  that  we  shall  apply  the  terms  formal  and  informal  to 
marriage  in  the  following  sections. 

§  20.  Same  Subject ;  Informal  Celebration.  —  (1)  To  Consti- 
tute a  marriage,  then,  where  there  are  no  civil  requirements, — 
or,  in  other  words,  to  constitute  an  informal  marriage,  —  words 
clearly  expressing  mutual  consent  are  sufficient  without  other 
solemnities.  Two  forms  of  consent  are  mentioned  in  the 
books  :  the  one,  consent  per  verba  de  prcesenti,  with  or  without 
consummation;  the  other,  consent  per  verba  de  future,  fol- 
lowed by  consummation.^  Some  writers  have  added  a  third 
form  of  consent,  —  by  habit  and  repute  ;  but  this  is,  very 
clearly,  nothing  more  than  evidence  of  consummated  marriage 
amounting  to  a  presumption  conclusive  enough  for  the  pur- 
pose at  hand.^     So,  too,  there  is  reason  to  suppose  that  the 

1  See  2  Kent  Com.  86,  87;  Co.  Ap.  Cas.  547 ;  1  Bish.  Mar.  &  Div.  5th 
Litt.  33rt  ;  1  Bish.  Mar.  &  Div.  §§  218-    ed.  §  227. 

267.  ^  Lord  Selborne,  in  the  recent  case 

2  Swinb.  Spousals,  2d  ed.  8 ;  2  Burn  of  De  Thoren  v.  Attorney-General,  1 
Ec.  Law,  Phillim.  ed.  455e;  Lord  Cot-  H.  L.  App.  686,  confirms  this  view, 
tenliam,  in  Stewart  v.  Menzies,  2  Rob.  See  also  Breadalbane's  Case,  L.  R.  1  H. 

L.  Sc.  182. 

44 


CHAP.  I.]  MARRIAGE.  §  26 

marriage  per  verba  defuturo  is  of  the  same  sort  as  the  former; 
marriage  per  verba  de  proisenti  constituting  the  only  real  mar- 
riage promise,  while  consummation  following  de  futuro  words 
of  promise  raises  a  legal  presumption,  not  probably  conclu- 
sive, that  words  de  proisenti  afterwards  passed  between  the 
parties.  The  copula  is  no  part  of  the  marriage  ;  it  only  serves 
to  some  extent  as  evidence  of  marriage.^  Conse7isus,  non  con- 
cubitus,  is  the  maxim  of  the  civil,  ecclesiastical,  and  common 
law  alike.2 

Informal  celebration  constitutes  marriage  as  known  to  nat- 
ural and  public  law.  The  English  canon  law,  as  it  stood  pre- 
vious to  the  Council  of  Trent,  the  law  of  Scotland,  the  law 
of  some  of  the  United  States,  and  perhaps  the  common  law 
of  England,  all  dispense  with  the  ceremonial  observances  of 
formal  marriage.^  Informal  marriage  is  to  be  sustained  on 
tlfe  theory  that  an  institution  of  such  fundamental  impor- 
tance to  our  race  ought  to  be  good  independently  of,  and 
prior  to,  the  formal  requirements  which  human  government 
imposes  at  an  advanced  stage  of  society.  But,  as  we  shall 
see,  the  marriage  acts  now  in  force  in  England  and  many  of 
the  United  States  render  certain  solemnities,  religious  or  sec- 
ular, indispensable.  Most  of  the  continuous  decisions  relat- 
ing to  informal  marriages  are  therefore  to  be  found  in  the 
Scotch  reports,  where  the  general  doctrine  has  been  pretty 
fully  discussed.  And  the  great,  the  almost  insuperable,  diffi- 
culty which  presents  itself  at  the  outset  in  such  cases  is  thus 
clearly  indicated  by  Lord  Stowell  in  Lindo  v.  BeUsario  :  "  A 

1  Port  V.  Port,  70  111.  484 ;  1  Bish.  Brannock,  66  Mo.  391 ;  Campbell  v. 
Mar.  &  Div.  5tli  ed.  §§  228,  254;  Jack-  Gullatt,  43  Ala.  57  ;  Askew  v.  Dupree, 
son  V.  Winne,  7  Wend.  47 ;  Dumaresly  30  Ga.  173.  But  Maryland  repudiates 
V.  Fishly,  3  A.  K.  Marsh.  368,  372;  the  doctrine  of  informal  marriages: 
Peck  V.  Peck,  12  R.  I.  485.  Denison  v.  Denison,  35  Md.  361 ;  as, 

2  Dalrymple  v.  Dalrymple,  2  Hag.  by  force  of  statute  or  otherwise,  do  cer- 
Con.  54  ;  4  p]ng.  Ec.  485,  489  ;  Shelf,  tain  other  States.  See  1  Bishop,  §  279  ; 
Mar.  &  Div.  5-7.  Estill  v.  Rogers,  1  Bush,  62  ;  Holmes 

3  Informal  marriage  has  been  recog-  v.  Holmes,  1  Abb.  (U.  S.)  525  ;  Robert- 
nized  to  a  greater  or  less  extent  in  the  son  v.  State,  42  Ala.  509  ;  State  v. 
United  States.  Dickerson  v.  Brown,  Miller,  23  Minn.  352  ;  Commonwealth 
49  Miss.  357  ;  Hutchins  v.  Kimmell,  31  v.  Munson,  127  Mass.  459 ;  State  v. 
Mich.  126;  Port  v.  Port,  70  111.  484;  Hodgskins,  19  Me.  155;  Schoul.  IIus. 
Lewis  V.  Ames,  44  Tex.  319 ;  Dyer  v.  &  Wife,  §§  31-34. 

45 


§  26  THE  DOMESTIC   RELATIONS.  [PART   II. 

marriage  is  not  every  carnal  commerce  ;  nor  would  it  be  so 
even  in  the  law  of  nature.  A  mere  carnal  commerce,  with- 
out the  intention  of  cohabitation  and  bringing  up  of  children, 
would  not  constitute  marriage  under  any  supposition.  But 
when  two  persons  agree  to  have  that  commerce  for  the  pro- 
creation and  bringing  up  of  children,  and  for  such  lasting 
cohabitation,  —  that,  in  a  state  of  nature,  would  be  a  mar- 
riage ;  and,  in  the  absence  of  all  civil  and  religious  institu- 
tions, might  safely  be  presumed  to  be,  as  it  is  properly  called, 
a  marriage  in  the  sight  of  G-od.""  ^  Did  parties  therefore 
coming  thus  together  mean  fornication  or  did  they  mean 
marriage  ? 

Here  it  is  seen  that  there  should  not  only  be  words  of 
promise,  but  that  they  should  be  uttered  with  matrimonial 
intent.  To  ascertain  the  purpose  of  the  parties  in  each  case, 
the  courts  will  look  at  all  the  circumstances,  and  even  admit 
parol  evidence  to  contradict  the  terms  of  a  written  contract ; 
in  this  respect  modifying  the  ordinary  rules  of  evidence.  For 
writings  of  matrimonial  acknowledgment  may  have  been  in- 
terchanged as  a  blind  or  cover  for  some  scheme  well  under- 
stood between  the  parties.^  Or  again  by  way  of  jest.^  But, 
in  cases  of  doubt,  the  rule  is  to  sustain  the  marriage  as  law- 
ful and  binding.  If  there  has  been  continued  intercourse 
between  the  parties,  this  presumption  becomes  of  course  still 
strono-er.  And  if  promises  were  exchanged  while  one  acted 
in  good  faith  and  in  earnest,  the  other  is  not  permitted  to 
plead  a  mental  reservation.'* 

Hence,  we  may  observe,  generally,  that  a  betrothal  fol- 
lowed by  copulation  does  not  make  this  informal  marriage  a 
legal  one,  when  the  parties  looked  forward  to  a  formal  mar- 
riage ceremony,  and  did  not  agree  to  become  husband  and 

1  1  Hag.  Con.  216;  4  Eng.  Ec.  367,  cited  in  1   Bish.  Mar.  &  Div.  5th  ed. 

374.     See  1  Bish.  Mar.  &  Div.  5th  ed.  §§  239-241. 

§§  216-267,  and   cases   cited  ;  2  Kent  3  Jh. ;  supra,  §  23  ;  McClurg  v.  Terry, 

Com.  8G  and  n. ;  1  Eras.  Dom.  Rel.  149,  21  N.  J.  Eq.  225  ;  Clark  v.  Field,  13  Vt. 

184,  187,  212.  460. 

•^  Dalrymple  v.  Dalryraple,  2  Hag.  •*  lb.     And  see  1  Eras.  Dom.  Rel. 

Con.  54,  105;  4  Eng.  Ec.  485,  508,  509,  213;  Lockyer    r.   Sinclair,    8    Scotch 

Sess.  Cas.  n.  s.  582. 

46 


CHAP.  I.]  MARRIAGE.  §  26 

wife  without  it.^  If,  too,  a  woman,  in  surrendering  her  per- 
son to  a  man,  is  conscious  that  she  is  committing  an  act  of 
fornication  instead  of  consummating  such  a  marriage,  the 
copula  cannot,  for  her  sake,  be  connected  with  any  previous 
words  of  promise  so  as  to  constitute  a  marriage.''^  And  a 
union  once  originating  between  man  and  woman,  purely 
illicit  in  its  character,  and  voluntarily  so,  there  must  appear 
some  formal  and  explicit  agreement  between  the  parties 
thereto,  or  a  marriage  ceremony,  or  some  open  and  visible 
change  in  their  habits  and  relations,  pointing  to  honest  inten- 
tions, before  their  alliance  can  be  regarded  as  converted  into 
either  a  formal  or  an  informal  marriage.'^ 

Nor  is  the  issue  between  informal  marriage  and  illicit 
intercourse  to  be  concluded  by  the  conduct  of  the  pair 
towards  society.  They  may,  for  convenience  or  decency's 
sake,  hold  themselves  out  to  third  persons  as  man  and  wife, 
while  yet  sustaining  at  law,  and  intentionally,  a  purely  mere- 
tricious relation.* 

And  yet  a  proper  regard  for  the  real  intention  of  the  co- 
habiting pair  encourages  often  the  presumption  of  innocence 
and  good  faith,  even  where  the  relation  assumed  was  an  illegal 
one.  Supposing  two  persons  to  have  made  an  informal  mar- 
riage, in  the  mistaken  belief  that  the  former  spouse  of  one  of 
them  was  already  dead,  or  that  some  sentence  of  divorce  left 
them,  in  like  manner,  free  to  unite.  This  case  should  be  dis- 
tinguished from  that  of  some  original  understanding  for  a 
mere  carnal  commerce.  And  if  the  impediment  becomes  re- 
moved in  the  course  of  their  cohabitation  under  such  circum- 
stances, and  the  pair  live  continuously  together  as  man  and 
wife,  no  new  ceremony,  agreement,  or  visible  change  in  their 
relation  would  probably  be  deemed  requisite  to  establish  mat- 

1  Peck  V.  Peck,  12  R.  I.  485 ;  Bever-  point.  It  is  stated  in  Breadalbane's 
son's  Estate,  47  Cal.  621.  Case,  L.  R.  1  H.  L.  Sc.  182,  that  a  con- 

2  Port  V.  Port,  70  111.  484.  neotion  beginning  as  adulterous  may, 

3  See  Floyd  v.  Calvert,  53  Miss.  37 ;  on  ceasing  to  be  so,  become  matri- 
Duncan  i;.  Duncan,  10  Ohio  St.  181  ;  monial  by  consent,  and  evidenced  by 
Hunt's  Appeal,  86  Penn.  St.  294 ;  Wil-  habit  and  repute,  without  a  public 
Hams  V.  Williams,  46  Wis.  464 ;  Bar-  act. 

num  V.  Barnum,  42  Md.  251.  Perhaps  *  Howe's  Estate,  Myrick's  Probate, 
the  Scotch  law  is  less  emphatic  on  this     100. 

47 


§26 


THE   DOMESTIC   RELATIONS. 


[part   II. 


rimoiiial  consent  subsequent  to  the  removal  of  the  impedi- 
ment ;  for  here  the  original  intention  continues,  but  in  the 
case  of  carnal  commerce  necessarily  changes,  in  order  that  an 
honest  relation  may  be  presumed.^ 

Disbelief  in  ceremonials,  or  conscientious  scruples,  may  be 
alleged  in  support  of  an  informal  marriage,  by  way  of  pref- 
erence, where  such  latter  marriage  is  held  lawful,  and  the 
parties  mutually  contracted  with  the  view  of  a  lawful  union.^ 


1  See  De  Thoren  v.  Attorney-Gen- 
eral, 1  H.  L.  App.  686,  where  tlie  im- 
pediment followed  divorce  ;  here  it  was 
held,  in  conformity  with  the  rule  above 
stated,  tliat  matrimonial  consent  after 
the  marriage  impediment  was  removed 
might  be  presumed. 

^  See  Bissell  v.  Bissell,  55  Barb. 
325.  Alittr,  where  statutes  positively 
require  a  ceremonial  marriage.  See 
post,  §  28. 

A  late  interesting  Scotch  case  illus- 
trates the  painful  uncertainty  which 
hangs  about  these  informal  marriages. 
A  baronet  of  forty,  and  a  bachelor, 
whose  dissolute  habits  were  notorious, 
had  somewhat  intimate  relations  with 
the  family  of  a  man  who  made  fish- 
tackles.  Entertained  at  the  hitter's 
house,  on  a  birthday  occasion,  with  a 
champagne  supper,  after  which  allusion 
was  made  by  the  host  to  the  bad  name 
he  was  getting  with  having  the  ban)net 
so  much  among  his  daughters,  the  titled 
guest  offered  to  shut  people's  mouths  ; 
he  was  poor  and  could  not  marry  now, 
he  said,  but  would  marry  after  Scotch 
fashion.  Then,  kneeling  before  one  of 
the  daughters,  a  damsel  of  sixteen,  he 
took  a  ring  from  his  pocket,  placed  it 
upon  her  third  finger,  and  said  to  her, 
"  Maggie,  you  are  my  wife  before 
Heaven,  so  help  me,  0  God !  "  and  the 
two  kissed  each  other.  The  daughter 
said  "  Oh,  Major  !  "  and  put  lier  arms 
around  his  neck.  The  baronet  and  the 
daughter  were  then  "bedded"  accord- 
ing to  the  old  Scotch  fashion.  They 
lived  together  for  some  weeks  after 
this  celebration,  and  met  at  various 
times,  but  there  appears  to  have  been 
no  continuous  cohabitation.     In  about 

48 


thirteen  months  Maggie  had  a  boy, 
whom  she  registered  as  illegitimate ; 
and,  some  eigliteen  months  later  still, 
the  baronet  died.  The  parties  to  this 
hasty  and  apparently  unpremeditated 
union  had  not,  meantiiue,  represented 
themselves  as  husband  and  wife  ;  and 
as  for  the  baronet,  he  denied  to  others 
that  such  relation  existed,  until,  when 
lying  at  the  point  of  death  in  delirium 
tremens,  he  seemed  doubtfully  to  ad- 
mit it.  Now,  here  was  an  informal 
marriage,  with  words  of  suitable  im- 
port, solemn  and  precise,  followed  by 
consummation.  Supposing  this  cere- 
mony to  have  been  with  marriage 
intention,  there  was  no  reason  for  dis- 
puting its  validity ;  nor,  indeed,  on  the 
girl's  behalf,  provided  she  took  all  in 
seriousness,  even  though  the  baronet 
himself  jested.  To  be  sure,  he  might 
have  been  maudlin  at  the  moment  ; 
on  which  point,  however,  the  case  did 
not  turn.  The  British  House  of  Lords 
reversed  the  decision  of  the  Scotch 
Court  of  Sessions,  mainly  upon  cir- 
cumstantial proof  that  both  parties 
by  behavior  subsequent  to  the  cere- 
mony, repudiated  its  force,  and  that 
neither,  in  fact,  had  been  in  earnest. 
The  present  issue  involved  the  inheri- 
tance of  the  baronet's  estate  at  some 
lapse  from  his  death.  Both  parents  of 
the  girl  were  now  dead  ;  the  baronet 
had  begotten  illegitimate  offspring  dur- 
ing his  life  elsewhere ;  and  instead  of 
asserting  upon  his  death,  as  she  might, 
that  this  boy  was  his  lawful  child, 
Maggie  had  at  first  claimed  only  a  bas- 
tard's support  for  him.  Steuart  v. 
Robertson,  L.  R.  2  H.  L.  Sc  494. 


CHAP.  I.]  MARRIAGE.  §  27 

§  27.  Same  Subject ;  Informal  Celebration.  —  Words  of  pres- 
ent promise,  in  order  to  constitute  an  informal  marriage,  must 
contemplate  a  present,  not  a  future,  assumption  of  the  status. 
And  herein  lies  a  difficulty :  that  of  discriminating  between 
actual  marriage  and  what  we  now  commonly  term  an  engage- 
ment. If  the  agreement  be  by  words  of  present  promise,  — 
as  if  the  parties  should  say,  "  We  agree  to  be  henceforth 
man  and  wife,"  —  the  marriage  is  perfect.  The  form  of  ex- 
pression is  not  material.^  And  Swinburne  says  that  though 
the  words  should  not  of  themselves  conclude  matrimony,  yet 
the  marriage  would  be  good  if  it  appeared  that  such  was  the 
intent.^  The  proposal  of  one  must  be  actually  accepted  by 
the  other  ;  yet  such  acceptance  may  be  indicated  by  acts,  such 
as  a  nod  or  courtesy.  The  mutual  consent  may  be  expressed 
orally  or  in  writing.''^  Written  promises  are  of  course  un- 
necessary ;  though  the  reported  cases  show  frequently  letters 
or  other  writings  interchanged,  from  which  the  intent  was 
gathered.  And  in  the  celebrated  Scotch  case  of  Dalrym'ple 
V.  Dalrym'ple^  a  marriage  promise  was  established  from  the 
successive  united  acknowledgments  of  tlie  parties  as  man  and 
wife,  the  writings  having  been  preserved  by  the  lady  and 
produced  by  her  at  the  trial.  In  this  case  the  principle  was 
sustained,  that  words  importing  secrecy  or  alluding  to  some 
future  act  or  public  acknowledgment,  when  superadded  to 
words  of  present  promise,  do  not  invalidate  the  agreement.^ 
More  uncertainty  arises  in  matrimonial  contracts  where  a 
condition  inconsistent  with  marriage  is  superadded  ;  as  if  par- 
ties should  agree  to  live  together  as  man  and  wife  for  ten 
years;  but  hona  fide  intent  may  be  fairly  presumed  where 
there  are  no  special  circumstances  to  throw  light  upon  the 
conduct  of  the  parties.^ 

1  1  Bisli.  Mar.  &  Div.  5th  ed.  §§  227,  *  Dalrymple  v.  Dalrymple,  2  Hag. 
229;  1  Fras.  Dom.  Rel   145-149.  Con.  54;  4  Eng.  Ec.  485;  Mclnnes  v. 

2  Swinb.  Spousals,  2d  ed.  87.  More,    Ferg.    Consist.    Law    Rep.    33  ; 

3  See  Sapp  v.  Newsom,  27  Tex  537,  Hoggan  v.  Cragie,  Maclean  &  Rob. 
vvliere  marriage  by  means  of  mutually  942. 

executing  a  bond  or  contract   is  sus-  ■'  See  1  Bish.  Mar.  &  Div.  oth  ed. 

tained  under  the  old  law,  which  was  of  §§  245-250;  Currie  v.  Tumbull,  Hume. 

Spanish  origin.    But  cf.  State  v.  Miller,  373  ;  1  Fras.  Dom  Rel.  154.    See  Ham- 

23  Minn.  352.  ilton  v.  Hamilton,  f)  CI  &  F.  327  ;  Hantz 

4  49 


§  27  THE   DOMESTIC    RELATIONS.  [PART    II. 

Marriage  by  words  of  future  promise  is  consummated  when 
two  persons  agree  to  marry  at  some  future  period  and  after- 
wards actually  do  cohabit.  The  foundation  of  this  doctrine 
is  the  presumption  that  the  parties  meant  right  rather  than 
wrong,  and  hence  that  copulation  was  permitted  on  the  faith 
of  the  marriage  promise.  But  in  this  class  of  cases  it  is 
requisite  that  the  promise  de  futuro  should  be  absolute  and 
mutual  and  in  good  faith.  Mere  courtship  does  not  suffice, 
though  followed  by  carnal  intercourse.^  Nor  in  general  do 
words  of  promise  with  immoral  conditions  annexed.  It  is 
admitted  that  no  familiarities  short  of  the  copula  will  con- 
vert such  loose  espousals  into  matrimony .^  It  is  not  clear 
whether  cohabitation  after  verba  de  futuro  ever  raises  a  con- 
clusive presumption  of  marriage  at  law  or  not :  unquestion- 
ably the  more  reasonable  doctrine,  however,  is  that  it  does 
not,  and  that  the  intent  of  the  parties  may  be  shown  as  in 
other  cases.^  But  innocence  will  be  inferred,  if  possible, 
rather  than  guilt.*  So  it  has  been  said  that  where  a  legal  im- 
pediment exists  to  a  marriage  between  persons  living  in  licen- 
tious intercourse,  as  the  impediment  sinks  the  status  rises.^ 
In  New  York  this  doctrine  of  marriage  by  words  de  futuro  is 
utterly  repudiated,  and  in  other  States  it  is  maintained  quite 
broadly  that  all  informal  marriages  were  unknown  to  the 
English  common  law.''     This  last  has  been  long  a  mooted 

V.  Sealy,  6   Binn.   405 ;  Robertson   r.  2  i  ^ish.  §  253. 

Cowdry,  2  West.  Law  Jour.  191 ;  and  3  ggg  Schoul  Hus  &  Wife,  §§  40- 
in  Bisli.  supra.  Bissell  v.  Bissell,  55  51,  as  to  breach  of  promise.  Seduction 
Barb.  325,  sliows  an  interesting  state  of  under  breacli  of  promise  does  not  con- 
facts,  upon  which  it  was  decided  that  stitute  a  marriage  See,  too,  Morrison 
tlie  marriage  was  valid.  c.  Dobson,  8  Scotch  Sess.  347. 

1  Reid  V.  Laing,  1  Shaw  App  Oas.  *  See  Cheney  v.  Arnold,  15  N.  Y. 

440;   Morrison    i'.    Dobson,   8    Scotch  345;  Duncan  v.  Duncan,   10  Ohio  St. 

Sess.  347,  cited  1  Bish.  §  253 ;  Bread-  181 ;    and  comments    of    Mr.   Bishop, 

albane's  Case,  L.  R.  1  H.  L.  Sc.  182 ;  §§  255-258  ;  Reg.  v.  MiUis,  10  CI.  &  F. 

Stewart  i'.  Menzies,  2  Rob.  App.  Cas.  534  ;  Swinb.  Spousals,  2d  ed.  225,  226  ; 

547,  591 ;  1  Fras.  Dom.  Rel  188  :  Reg.  Robertson  v.  State,  42  Ala.  509. 

V.  Millis,  10  CI.  &  F.  5.34,  780 :  Peck  v  ">  I  Bish.  Mar  &  Div  5th  ed.  §  248; 

Peck,  12  R.  I   485;  Beverson'.s  Estate.  De  Thoren  v.  Attorney  General,  1  H. 

47   Cal    621;  Dumaresly    v.   Fishly,  3  L    App  686 

A.  K.  Marsh  368  ;  1  Bish    Mar  &  Div.  6  Cheney   n.  Arnold,   15  N.  Y    "Ab. 

5th   ed     §§   25.3-205,  and   other  cases  But  see   Bish.   §§  255-258;    Bissell  v. 

cited  ;  Port  v.  Port,  70  111.  484  ;  Schoul.  Bissell,  55  Bar!).  325.     And  see  Deni- 

Hus.  &  Wife,  §  38.  son  v.  Denison,  35  Md.  361 ;  Holmes  v. 
50 


CHAP.  I.]  MAERIAGE.  §  28 

point  in  the  courts,  and  will  ever  remain  so  ;  but  whatever 
may  have  been  the  historical  fact,  certain  it  is  that  the  neces- 
sity of  a  more  formal  observance  of  marriage  has  been  almost 
universally  recognized  ;  and  the  very  words,  "  marriage  in 
the  sight  of  God,"  so  familiar  to  the  readers  of  the  Scotch 
matrimonial  law,  not  only  import  the  peculiar  embarrassments 
which  attend  the  justification  of  such  loosely  contracted  alli- 
ances before  the  world,  but  attest  the  solemn  character  of  this 
institution.^ 

§  28.  Same  Subject;  Formal  Celebration.  —  (2)  All  the  learn- 
ing of  informal  marriages,  if  there  was  ever  much  of  it,  was 
swept  out  of  the  English  courts  when  formal  religious  cele- 
bration was  prescribed  by  positive  statute.  Ceremonials  had 
long  been  required  by  those  canons  upon  which  the  ecclesias- 
tical law  was  based.  Lord  Hardwicke's  Act,  passed  in  the 
reign  of  George  11.,^  is  the  most  famous  of  these  statutes. 
This  act  required  all  marriages  to  be  solemnized  in  due  form 
in  a  parish  church  or  public  chaj)el,  with  previous  publication 
of  the  banns ;  and  marriages  not  so  solemnized  were  pro- 
nounced void,  unless  dispensation  should  be  granted  by  spe- 
cial license.  Some  harsh  provisions  of  this  act  were  relaxed 
in  the  reign  of  George  IV.,  but  soon  re-enacted.^  More  re- 
cent legislation  permits  of  a  civil  ceremonial  before  a  register, 
to  satisfy  such  as  may  have  conscientious  scruples  against 
marriage  in  church.*  Such,  too,  is  the  general  tenor  of 
legislation  in  this  country ;  the  law  justly  regarding  civil  obser- 
vances and  public  registration  sufQcient  for  its  own  purposes, 
while  human  nature  clins^s  to  the  relig[ious  ceremonial.^ 

Holmes,  1  Abb.  (U.  S.)  52-5;  Duncan  and  joint  accumulation  of  property  and 

V.  Duncan,  10  Ohio   St.   181 ;  Port  v.  care  of  children,  see  State  v.  Miller,  23 

Port,  70  111.  484.     The  opinion  of  Lord  Minn.  352.    And  see  Commonwealth  v. 

Stowell,  in  the  case  of   Dalrymple   v.  Munson,  127  Mass.  459.     See,  further, 

Dalrymple,  to  which  we  have  alluded,  Schoul.  Hus.  &  Wife,  §§  38,  39. 
is  an  admirable  exposition  of  the  law         2  26  Geo.  II.  c.  33  (1753). 
of  informal  marriages.     It  is  a  master-  ^  3  Qqq,  IV. ;  4  Geo.  IV.  c.  76. 

piece  of  judicial  eloquence  and  careful         *  See  6  &  7  Will.  IV.  c.  85,  &  c.  88 ; 

research.  7  Will.  IV.,  and  1  Vict,  c  22,  and  3  & 

1  For  a  case  arising  on  an   indict-  4  Vict.  c.  92. 
ment  against  a  man  for  cohabiting  with  ^  See  2  Kent  Com.  88-90 ;  1  Bish. 

a  woman  Avithout  formal  marriage,  but  Mar.  &  Div.  5th  ed.  §  279. 
under  a  special  contract  for  a  life-union 

51 


§  28  THE  DOMESTIC   RELATIONS.  [PART  II. 

Either  celebration  before  a  clergyman  or  with  the  partici- 
pation of  some  one  of  such  civil  officers  as  the  statute  may 
designate  is  therefore  at  the  option  of  parties  choosing  at  the 
present  day  to  marry.  This  is  the  law  of  England  and 
America.  And  the  only  controversies  ever  likely  to  occur  in 
our  courts  would  be  where  the  language  of  the  statutes  in 
some  particular  State  left  it  doubtful  whether  marriages 
celebrated  informally  were  to  be  considered  absolutely  null. 
It  is  to  be  borne  in  mind  that  Lord  Hardwicke's  Act  is  of  too 
recent  a  date  to  be  considered  as  part  of  our  common  law. 
Was,  then,  marriage  in  facie  ecclesice  essential  in  England 
before  the  passage  of  this  act?  It  is  admitted  that  the  reli- 
gious marriage  celebration  was  customary  previous  to  the 
Reformation.  It  is  further  allowed  that  the  church,  centu- 
ries ago,  created  an  impediment,  now  obsolete,  called  "  pre- 
contract," the  effect  of  which  was  that  parties  engaged  to  be 
married  were  bound  by  an  indissoluble  tie,  so  that  either  one 
could  compel  the  other  to  submit  at  any  time  to  the  ceremo- 
nial marriage.  But  whether  precontract  rendered  children 
legitimate,  and  carried  dower,  curtesy,  and  the  other  inci- 
dents of  a  valid  marriage,  is  not  clear.  In  1844  the  question, 
whether  at  the  common  law  a  marriage  without  religious 
ceremony  was  valid,  went  to  the  English  House  of  Lords,  and 
resulted  in  an  equal  division. ^  And,  curiously  enough,  such 
was  the  fate  of  a  similar  case  in  this  country  before  the  high- 
est tribunal  in  the  land.^  So  that  we  may  fairly  consider  the 
law  on  this  point  as  for  ever  unsettled.^ 

1  Reg.  v.  Millis,  10  CI.  &  F.  534.  Mr.  Bishop  confirms  these  conclusions 

2  Jewell  V.  Jewell,  1  How.  (U.  S.)  while  suggesting  new  reasons  for  such 
219.  an  American  doctrine ;  as,  for  instance, 

3  See  full  discussion  of  this  question,  that  in  these  colonies  the  attendance 
with  authorities,  in  note  to  2  Kent  Com.  of  one  in  holy  orders,  and  more  espe- 
87  ;  also  in  1  Bish.  Mar.  &  Div.  §§  209-  cially  of  an  ordained  clergyman  of  the 
282;  Cheney  v.  Arnold,  15  N.  Y.  345.  established  church,  could  not  always 
The  American  doctrine  is,  that  the  in-  be  readily  procured.  See  1  Bish.  Mar. 
tervention  of  one  in  holy  orders  was  not  &  Div.  5th  ed.  §§  279-282,  and  deci- 
essential  at  common  law.  This  is  the  sions  collated  ;  2  Kent  Com.  87;  Reeve 
view  of  Chancellor  Kent,  Judge  Reeve,  Dom.  Rel.  195  et  seq.;  2  Greenl.  Ev. 
and  Professor  (ireenlcaf,  as  expressed  §  460. 

in  tlieir  respective  text-books ;  also  the         But  in  several  States  the  contrary 
general  current  of  American  decisions,    is  declared   to   be    the    common   law. 

52 


CHAP.  I.]  MAERIAGE.  §  28 

Among  most  nations  and  in  all  ages  has  the  celebration  of 
marriage  been  attended  with  peculiar  forms  and  ceremonies, 
which  have  partaken  more  or  less  of  the  religious  character. 
Even  the  most  barbarous  tribes  so  treat  it  where  they  hold  to 
the  institution  at  all.  The  Greeks  offered  up  a  solemn  sacri- 
fice, and  the  bride  was  led  in  great  pomp  to  her  new  home. 
In  Rome,  similar  customs  prevailed  down  to  the  time  of 
Tiberius.  Marriage,  it  is  true,  degenerated  afterwards  into  a 
mere  civil  contract  of  the  loosest  description ;  parties  being 
permitted  to  cohabit  and  separate  with  almost  equal  freedom.^ 
The  early  Christians,  there  is  reason  to  suppose,  treated  mar- 
riage as  a  civil  contract ;  yielding,  perhaps,  to  the  prevailing 
Roman  law.  Yet  the  teachings  of  the  New  Testament  and 
church  discipline  gave  peculiar  solemnity  to  the  relation. 
And  religious  observances  must  have  prevailed  at  an  early 
date,  for  in  process  of  time  marriage  became  a  sacrament. 
In  England,  centuries  later,  it  needed  only  Lord  Hardwicke's 
Act  to  apply  statute  law  to  a  universal  practice  ;  for  although, 
in  the  time  of  Cromwell,  justices  of  the  peace  were  permitted 
to  perform  the  ceremony,  popular  usage  by  no  means  sanc- 
tioned the  change.  Informal  marriages  are  uncommon  even 
in  Scotland,  where  the  civil  law  prevails.  In  our  own  coun- 
try it  is  not  surprising  that  local  jurisprudence  should  have 
exhibited  some  signs  of  reaction  against  ancient  canon  and 
kingly  ordinance.  Yet,  even  with  us,  the  almost  universal 
custom  repudiates  informal  and  civil  observances ;  and, 
secured  in  the  privilege  of  choosing  prosaic  and  business-like 
methods  of  procedure,  Christian  America  yields  its  testimony 
in  favor  of  marriage  in  facie  ecclesice? 

1  Bish.  ib.      And  statutory  forms  are  servance.      We   are   speaking  only  of 

declared  requisite,  and  the  doctrines  of  the  universal  testimony  as  to  the  fitness 

informal  marriage  denied  more  or  less  of  peculiar  and  in  general  religious  ob- 

emphatically,  as  the   foregoing  pages  servances.      Judge   Reeve,   exliibiting 

have  shown.     Supra,  §  26,  note.  his   contempt   for  "  Popish  "  practices, 

1  Smith's  Diet.  Antiq.  "Marriage;"  says,  "There  is  nothing  in  the  nature 

supra.  Part  I.  of   a   marriage   contract   tliat  is  more 

■^  See  2  Kent  Com.  89,  and  authori-  sacred  than  that  of  other  contracts,  that 

ties  cited.  requires  the  interposition  of  a  person 

We  do  not  mean  to  imply  that  mar-  in   holy  orders,  or   that  it   should  be 

riage  is  a  sacrament,  or  that  religious  solemnized  in  church."     Eeeve  Dom. 

ceremonies  are  essential  to  its  due  ob-  Eel.  196.     At  tiie  time  he  wrote,  was 

53 


§  29  THE  DOMESTIC   RELATIONS.  [PART   II. 

§  29.  Same  Subject ;  Formal  Celebration.  —  But,  out  of  con- 
sideration for  what  may  be  termed  the  public,  or  natural  and 
theoretical  law  of  marriage,  many  American  courts  have,  to 
a  very  liberal  extent  and  beyond  all  stress  of  necessity,  upheld 
the  informal  marriage  against  even  legislative  provisions  for 
a  formal  celebration.  Marriage  being  a  matter  of  common 
right,  it  is  lately  held  by  the  highest  tribunal  for  harmonizing 
the  rule  of  States,  that,  unless  the  local  statute  which  pre- 
scribes regulations  for  the  formal  marriage  ceremony  posi- 
tively directs  that  marriages  not  complying  with  its  provisions 
shall  be  deemed  void,  the  informal  marriage  by  words  of 
present  promise  must  be  pronounced  valid,  notwithstanding 
statutory  directions  have  been  disregarded.^ 

Whether  we  must  absolutely  accept  this  doctrine,  or  not, 
in  its  full  pernicious  extent,  and  thus  put  legislators  to  the 
use  of  express  words  of  nullity  in  statutes  which  might  other- 
wise as  well  have  been  omitted,  the  main  purpose  of  enforc- 
ing upon  civilized  and  populous  communities  marriage  rites 
appropriate  to  so  solemn  an  institution  being  surely  desirable, 
it  will  be  readily  conceded  that  English  and  American  tribu- 
nals tend,  in  construing  the  marriage  acts,  to  uphold  every 
marriage,  if  possible,  notwithstanding  a  non-compliance  with 
the  literal  forms.  And  this  is  right ;  for  while  formal  cele- 
bration is  a  shield  to  honest  spouses  and  their  posterity,  rigor 
in  the  details  of  form,  especially  in  inconvenient  or  trivial 
details,  or  those  which  it  is  incumbent  rather  upon  third  per- 
sons to  respect,  exposes  them  to  new  dangers.  Thus  is  it 
as  concerns  place  ;  ^  and  as  to  the  due  proclamation  of  banns, 
collateral  points  concerning  ecclesiastical  authority  are  inap- 
propriate.^    And  though  the  parties  may  have  failed  to  ob- 

not  the  practice  prevailing  in  New  2  Queen  v.  Cresswell,  1  Q.  B.  D.  446. 
England  contrary  to  his  theory,  as  it  And  see  Stallwood  v.  Tredger,  2  Phil- 
was  before   and   as   it  remains   still  ^  lira.  287. 

And  who  has  ever  proposed  in  modern  ^  See   Hutton   v.  Harper,   1   H.  L. 

times  to  perform  a  business  contract  in  App.  464  ;  Sichel  v.  Lambert,  15  C.  B. 

church  ■^  N.  8.  781 ;  Prowse  v.  Spurway,  26  W.  R. 

1  Meister  v.   Moore,   96   U.  S.   76,  116;  Cannon  y.  Alsbury,  1  A.  K.  Marsh, 

citing    this    as    the    rule    in     Michi-  76;    Askew   v,   Dupree,   30   Ga.   173; 

gan ;   Hutchins  v.  Kimmell,  31    Mich.  Blackburn  v.  Crawfords,  3  Wall.  175; 

128;  Londonderry  v.  Chester,  2  N.  H.  Holmes  r.  Holmes,  6  La  46'.;  Sieven- 

208.  son  V.  Gray,  17  B.  Monr.  ly3. 

64 


CHAP.  I.]  MAKRIAGE.  §  30 

serve  certain  formalities  of  license  or  registry,  their  marriage 
will  generally  be  held  good  in  both  England  and  this  country, 
even  though  the  magistrate  or  clergyman  be  subject  himself 
to  a  penalty  for  the  irregularity.^  On  the  other  hand,  our 
ceremonial  statutes  of  marriage,  which  require  fulfilment  at 
all,  must,  in  fundamental  respects  at  all  events,  be  complied 
with.  Thus,  the  essence  of  formal  marriage  seems  to  consist 
in  the  performance  of  the  ceremony  by  or  in  the  presence  of 
a  responsible  third  person.  And  hence,  unless  parties  can 
take  refuge  in  natural  law  and  an  informal  marriage,  they  are 
not  permitted  to  tie  their  own  knot.''^ 

§  30.  Consent  of  Parents  and  Guardians.  —  The  consent  of 
parents  and  guardians  is  one  of  those  formalities  which  mar- 
riage celebration  acts  now  commonly  prescribe  in  the  interest 
of  society,  as  they  do  banns  or  the  procurement  of  a  license 
generally  for  better  publicity.  Such  consent  was  not  neces- 
sary to  perfect  a  marriage  at  the  common  law.  But  Lord 
Hardwicke's  Act  made  the  marriage  of  minors  void  without 
consent  of  parents  or  guardians  first  obtained.^  This  proved 
intolerable.  A  bona  fide  and  apparently  regular  marriage  was 
in  one  instance  set  aside,  after  important  rights  had  inter- 
vened, for  no  other  cause  than  that  an  absent  father,  sup- 
posed to  be  dead,  but  turning  up  unexpectedly,  had  failed  to 
bestow  his  permission,  and  the  mother  had  acted  in  his 
stead."^  Gretna  Green  marriages,  on  Scotch  soil,  became  the 
usual  recourse  for  children  with  unwilling  protectors.^  Hence 
the  law  was  afterwards  modified,  so  that,  without  the  re- 
quisite consent,  marriages,  although  forbidden,  might  remain 


1  Upon  this  point  see  further,  1  Bish.  Mar.  &  Div.  5th  ed.  §§  293-295, 
Schoul.  Hus.  &  Wife,  §  35,  and  cases  and  cases  cited. 

cited ;  1  Bish.  Mar.  &  Div.  §§  283,  287.         *  Hayes  v.  Watts,  2  Phillim.  43. 

2  Commonwealth  v.  Munson,  127  ^  Stat.  ]0  &  20  Vict.  c.  96,  to  stop 
Mass.  459.  And  see  Milford  v.  Wor-  these  runaway  matches,  enacts  that  no 
cester,  7  Mass.  48.  But  in  Beamisli  v.  irregular  marriage  contracted  in  Scot- 
Beamish,  1  Jur.  N.  s.  Part  II.  455,  it  land  shall  be  valid  unless  one  of  the 
was  held  in  Ireland  that  a  clergyman  parties  had  his  or  her  usual  residence 
might  marry  himself.  See  1  Bish.  in  Scotland,  or  lived  there  for  21  days 
§  289.  preceding  the   marriage.     Lawford  v. 

»  26   Geo.   II.   c.   33.     See   2  Kent  Davies,  39  L.  T.  n.  s.  111. 
Com.  85  ;  Eex  v.  Hodnett,  1  T.  R.  96 ; 

65 


§  31  THE  DOMESTIC    RELATIONS.  [PART    H. 

valid  ;  ^  and  these  features  are  found  to  characterize  the  mar- 
riage acts  in  the  different  States  of  this  country .^  Claudes- 
tine  marriages  are  doubtless  to  be  discouraged,  and  the  law- 
will  willingly  inflict  penalties  upon  clergymen,  magistrates, 
and  all  others  who  aid  the  parties  in  their  unwise  conduct, 
the  penalty  serving  in  a  measure  as  indemnification  to  the 
parent  or  guardian  ;  but  experience  shows  that  legislation 
cannot  safely  interpose  much  farther.^ 

Under  such  statutes  (which,  however,  vary  in  language 
and  scope  in  different  States)  it  has  been  held  that  if  a  minor 
has  both  parent  and  guardian,  the  guardian  should  consent 
in  preference ;  though  it  might  appear  more  proper  to  con- 
sider which  has  the  actual  care  and  government  of  the  minor. 
One  who  has  relinquished  the  parental  control  cannot  sue  for 
the  penalty  ;  bat  a  father's  unfitness  is  not  pertinent  to  the 
issue  of  uniting  his  minor  child  in  marriage  without  his 
leave,  nor  ground  for  accepting  the  mother's  sole  consent 
instead.  In  this  class  of  statutes  the  minister  or  magistrate 
who  has  made  himself  amenable  to  the  law  cannot  in  general 
defend  on  the  plea  that  he  acted  in  good  faith.  The  ex- 
pression of  consent  is  in  some  States  made  a  prerequisite  to 
granting  the  marriage  license.* 

§  31.  Legalizing  Defective  Marriages  ;  Legislative  Marriage.  — 
Defective  marriages,  we  may  further  observe,  have  in  some 
instances  been  legalized  by  statute  ;  as  where  parties  within 
the  prohibited  degrees  of  consanguinity  or  affinity  have 
united.  So  with  marriages  before  a  person  professing  to  be 
a  clergyman   or  justice   of   the   peace,   btit  without   actual 


1  Rex  V.  Birmingham,  8  B.  &  C.  29  ;  Dole,  20  La.  Ann.  378.  The  language 
Shelf.  Mar.  &  Div.  309-322 ;  Stat.  4  of  some  statutes  leaves  the  point  in 
Geo.  IV.  c.  76.  doubt  as  to  wliether  marriage  without 

2  1  Bish.  Mar.  &,  Div.  §§  341-347,  the  consent  of  parents  renders  the 
and  cases  cited;  Smyth  v.  State,  13  marriage  void,  or  only  subjects  offend- 
Ark.  G90  ;  WyckofF  v.  Boggs,  2  Halst.  ing  parties,  including  tlie  person  who 
138;  Bollin  v.  Shiner,  2  Jones  (Pa.),  performs  the  ceremony,  to  a  penalty. 
205.  And  see  Wood  v.  Adams,  35  But  the  latter  is,  of  course,  to  be  pre- 
N.  H.  32  ;  Kent  v.  State,  8  Blackf  163 ;  sumed  rather  than  the  former. 
Askew  V.  Dupree,  30  Ga.  173 ;  Fitz-  3  gee  further,  Schoul.  Hus,  &  Wife, 
Patrick  v.  Fitzpatrick,  6  Nev.  63  ;  Ad-  §  36. 

ams  V.  Outright,  53  111.  361 ;  State  v.         *  Schoul.  Hus.  &  Wife,  §  36. 

66 


CHAP.  I.]  MARRIAGE.  §  32 

authority.  On  principle,  in  fact,  there  seems  no  reason  to 
doubt  that  any  government,  through  its  legislative  branch, 
may  uuite  a  willing  pair  in  matrimony,  as  well  as  pass  gen- 
eral laws  for  that  purpose,^  But  though  legislative  divorces 
are  not  unfrequeut,  a  legislative  marriage  is  something 
unknown,  not  to  say  uncalled  for.  And  in  this  country, 
questions  of  fundamental  constraint  under  a  written  consti- 
tution might  arise,  even  where  the  cure  only  of  a  defective 
marriage  was  sought  by  the  legislature;  inasmuch  as  the  inter- 
vening rights  of  third  persons  might  thereby  be  prejudiced.^ 

§  32.  Restraints  upon  Marriage.  — The  policy  of  restraining 
marriage  is  treated  with  disfavor  by  our  law,  which  on  the 
contrary  seems  disposed  to  encourage  the  institution,  though 
not  to  the  extent  practised  by  some  countries  of  openly  pro- 
moting its  observance,  or  forcing  private  inclination  in  the 
conjugal  direction.  Numerous  cases,  those  particularly  which 
construe  the  provisions  of  testamentary  trusts,  have  laid  it 
down  that  the  general  restraint  of  marriage  is  to  be  dis- 
couraged. Accordingly  a  condition  subsequent,  annexed  by 
way  of  forfeiture  to  a  gift,  legacy,  or  bequest,  in  case  the 
donee  or  legatee  should  marry,  will  be  held  void  and  in- 
operative, as  a  restraint  upon  marriage,  and  so  as  to  both 
income  and  capital.^  But  marriage  and  remarriage  are 
differently  viewed  in  this  respect  ;  and  it  is  well  settled  that 
forfeituie  by  condition  subsequent  in  case  a  widow  shall 
marry  again  must  be  upheld  as  valid,  whether  that  widow 
be  the  beneficiary  through  her  husband  or  some  other  person. 
Does  the  latter  rule  apply  equally  to  widow  and  widower, 
woman  and  man  ?  Upon  full  consideration  the  English 
chancery  held  a  few  years  ago,  on  appeal  (reversing  the 
decision  of  the  lower  tribunal),  that  it  does.* 

1  Brunswick  v.  Litchfield,  2  Greenl.  legal  presumptions,  see  1  Bish.  Mar.  & 

28  ;  Moore   v.  Wliittalcer,   2   Harring.  Div.  5tii  ed.  §  432  et  seq. ;  Schoul.  Hus. 

50  ;  Goshen  v.  Richmond,  4  Allen,  458  ;  &  Wife,  §§  38,  39. 
1  Bish.  Mar.  &  Div.  5th  ed.  §§  657-6.39.  See  also  promises  to  marry,  Schoul. 

As  to  tlie  effect  of  a  Texas  statute,  Hus.  &  Wife,  §§  40-51. 
which  relaxed  old  requirements  in  le-         ^  See  Bellairs  v.  Bellairs,  L.  R.  18 

galizing  an  irregular  marriage,  see  Rice  Eq.  510,  and  cases  cited. 
V.  Rice,  31  Tex.  174.  *  Allen  v.  Jackson,  1  Ch.  D.  399,  re- 

-  As  to  the  proof  of  a  marriage  and  versing  s.  c.  L.  R.  19  Eq.  C31.     See 

57 


§  33  THE    DOMESTIC    RELATIONS.  [PART   U. 

The  latest  English  decisioiib,  on  the  whole,  do  not  stren- 
uously resist  these  restraints  upon  marriage  in  testamentary 
trusts.^  And  it  is  doubtful  whether  the  rule  disco urasrina: 
restraint  of  marriage  can  extend  to  devises  of  land ;  though 
on  princi^^le  there  should  be  no  distinction  between  devises 
and  gifts  or  bequests  in  this  respect.'^ 


CHAPTER  II. 

EFFECT   OF  MARRIAGE  ;   PERSON   OF   THE   SPOUSE. 

§  33.  Effect  of  Marriage  ;  Order  of  Legal  Investigation.  — 
When  the  parties  to  a  lawful  marriage  have  once  completed 
the  ceremony,  or,  as  it  is  said^  have  executed  the  contract  of 
marriage,  they  are  admitted  into  the  marriage  relation,  and 
their  mutual  rights  and  obligations  become  at  once  bounded, 
protected,  and  enforced  by  the  general  law  of  husband  and 
wife.  What  that  law  is  will  constitute  the  topic  of  dis- 
cussion in  this  and  succeeding  chapters  of  this  part.  We 
have  already  alluded  to  the  confusion  and  uncertainty  which 
exist  at  the  present  day,  and  particularly  in  many  of  the 
United  States,  in  the  law  of  husband  and  wife,  owing  to  the 

opinion  of  James,  L.  J.,  and  authorities  disposal  of  property.     No  act  of  parlia- 

cited  ;  this  interesting  point  being  tlius  ment   or   decision    of   a  court,  he  ob- 

raised  for  the  first  time.  served,  established  any  distinction  here 

Rights   are    equal   as    to    marrying  between  the  second  marriage  of  man  or 

again,  so  far  as  widow  and  widower  are  woman,  and  he  knew  of  no  reason  for 

concerned,  as   all   will   readily  admit,  making  it. 

The  lower  court  was  probably  influ-  i  It  is  held  that  a  gift  to  one's  widow 
enced  by  considerations  which  medical  on  condition  that  she  retire  immediately 
men  adduce,  showing  that  marriage  is  into  a  convent  is  upon  a  good  condition 
more  essential  to  a  man's  continuous  precedent.  Duddy  v.  Gresham,  39  L. 
well-being  than  a  woman's,  and  that  a  T.  n.  s.  48.  Also,  that  it  is  a  good  con- 
widow,  on  the  whole,  is  less  likely  to  dition  subsequent  which  forfeits  a  gift 
have  sufficient  reason  for  marr^'ing  to  one's  brother  in  case  he  marries  "a 
again  than  a  man.  But  this  argument,  domestic  servant,"  or  one  of  lower  de- 
if  sound,  is  perhaps  far-fetched,  and  gree,  degrading  his  own  family.  Jen- 
James,  L.  J.,  on  appeal,  treated  the  ner  v.  Turner,  29  W.  R.  99. 
subject  more  from  the  aspect  of  equal  2  Jones  v.  Jones,  1  Q.  B.  D.  279. 
rights,  as  between    tlie   se-xes,  in  tlie 

58 


CHAP.  II,]  PERSON    OF   THE   SPOUSE.  §  34 

transition  period  through  which  we  seem  to  be  passing  from 
the  marriage  relation  of  the  common  law  to  that  known  to 
the  civil  law.^  Our  subject  will  be  most  conveniently  treated 
by  taking  up  the  common-law  doctrine  first,  and  thoroughly 
examining  its  principles ;  then  passing  to  the  modern  or 
civil-law  doctrine  for  discussion  in  like  manner.  First,  then, 
the  rights  and  disabilities  of  marriage  on  the  coverture  scheme ; 
secondly,  the  rights  and  disabilities  of  marriage  on  the  sepa- 
rate existence  scheme,  or  with  the  innovations  which  equity 
and  modern  statutes  have  made. 

But  since  these  rights  and  disabilities  have  varied  little,  ex- 
cept as  to  the  wife's  property,  we  may  here  investigate  those 
general  principles  of  the  common  law  which  concern  the  per- 
son of  the  spouse,  once  and  for  all. 

§  34.  Person  of  the  Spouse  ;  Coverture  Principle ;  Husband 
Head  of  Family.  —  The  general  principle  of  coverture,  as  de- 
fined by  Blackstone  and  other  common-law  writers,  is  this : 
that  by  marriage  the  husband  and  wife  become  one  person  in 
law  ;  that  is  to  say,  the  very  being  or  legal  existence  of  the 
woman  is  suspended  during  the  marriage,  or,  at  least,  is  in- 
corporated and  consolidated  into  that  of  the  husband,  under 
whose  wing,  protection,  and  cover  she  performs  everything  ; 
and  is  therefore  called  in  the  law-French  Sifeme  covert^  foemina 
viro  co-operta ;  is  said  to  be  covert-baron,  or  under  the  pro- 
tection and  influence  of  her  baron  or  lord  ;  and  her  condition 
during  her  marriage  is  called  her  coverture.^  For  this  reason 
the  term  applied  to  the  relation  of  husband  and  wife  in  the 
old  books  is  baron  ayid  feme.  Upon  this  fundamental  prin- 
ciple depend,  at  the  common  law,  the  general  rights,  duties, 
and  disabilities  of  marriage.  But  this  very  definition  shows 
inaccuracy,  to  say  nothing  of  unfairness  of  application.  Here 
are  two  conflicting  notions :  one  that  the  existence  of  the 
wife  is  actually  lost  or  suspended;  the  other  that  there  is  still 
an  existence,  which  is  held  in  subordination  to  the  will  of  her 
lord  and  master,  which  last  the  w^ord  coverture  fitly  expresses. 
It  will  appear  in  fact  that  while  some  of  the  wife's  disabilities 

1  See  Introductory,  §§  4-8. 

2  1  Bl.  Com.  442 ;  Co.  Litt.  112 ;  2  Kent  Com.  129. 

69 


§  34  THE   DOMESTIC   RELATIONS.  [PART  II. 

seem  based  upon  the  one  notion,  others  are  based  upon  the 
latter,  and  probably  more  correct  one.  The  wife's  disabili- 
ties are  deemed  by  Blackstone  "  for  the  most  part  intended 
for  her  protection  and  benefit."  And  he  adds,  by  wa}^  of 
rhetorical  period,  "  so  great  a  favorite  is  the  female  sex  of 
the  laws  of  England  !  "  a  proposition  which  his  commentators 
have  gravely  proceeded  to  dispute  and  dissect,  and,  it  must 
be  added,  not  without  good  success.^ 

The  husband's  right  of  dominion  is  therefore  fully  recog 
nized  at  the  common  law.  And  never  was  the  English 
doctrine,  despite  its  failings,  set  forth  in  more  terse  and 
forcible  language  than  in  the  words  of  Sir  Thomas  Smith : 
"  The  naturalest  and  first  conjunction  of  two  towards  the 
making  a  further  society  of  continuance  is  of  the  husband 
and  wife,  each  having  care  of  the  family :  the  man  to  get,  to 
travel  abroad,  and  to  defend  ;  the  wife  to  save,  to  stay  at 
home,  and  to  distribute  that  which  is  gotten  for  the  nurture 
of  the  children  and  family ;  which  to  maintain  God  has  given 
the  man  greater  wit,  better  strength,  better  courage,  to  com- 
pel the  woman  to  obey  by  reason  or  force ;  and  to  the  woman 
beauty,  fair  countenance,  and  sweet  words,  to  make  the  man 
obey  her  again  for  love.  Thus  each  obeyeth  and  command- 
eth  the  other  •,  and  they  two  together  rule  the  house  so  long 
as  they  remain  in  one."  ^ 

In  accordance  with  these  principles,  and  perhaps,  too, 
the  laws  of  nature  and  divine  revelation,  the  husband  is  the 
head  of  the  family,  and  dignior  persoiia.  As  to  the  more 
strictly  personal  consequences  of  the  marriage  .union,  his 
rights  and  duties  have  suffered  no  violent  change  at  our 
modern  law.  It  is  for  the  wife  to  love,  honor,  and  obey :  it 
is  for  the  husband  to  love,  cherish,  and  protect.  The  hus- 
band is  bound  to  furnish  his  wife  with  a  suitable  home  ;  to 
provide,  according  to  his  means  and  condition  of  life,  for  her 

1  1  Bl.  Com.  445,  notes  by  Christian,  from  suspicion.     See  2  Kent  Com.  182, 

Hargrave,  and  others.     It  is  probable  closing  sentence  at  foot  of  the  page. 
that  Blackstone  used  this  expression  in         ^  Commonwealth  of  England,  Book 

a  strain  of  playful  gallantry,  not  un-  1,  ch.  2,  quoted  in  Bing.  Inf..  &  Co  v. 

common  with  lecturers.     Even  Chan-  p.  184. 
cellor  Kent's  observations  are  not  free 

60 


CHAP.  II.J  PERSON   OF   THE   SPOUSE.  §  35 

maintenance  and  support ;  to  defend  her  from  personal  insult 
and  wrong ;  to  be  kind  to  her ;  to  see  that  the  offspring  of 
their  union  are  brought  up  with  tenderness  and  care  ;  and 
generally  to  conduct  himself,  not  according  to  the  strict  letter 
of  the  matrimonial  contract,  but  in  its  spirit.  So  long  as  he 
does  this,  his  authority  is  acknowledged  at  the  common  law ; 
and  if  the  wife's  wishes  and  interests  clash  with  his  own,  she 
must  yield.^ 

§  35.  Duty  of  Spouses  to  Adhere  or  Live  Together.  —  Mar- 
riage necessarily  supposes  a  home  and  mutual  cohabitation. 
Each  party  has  therefore  a  right  to  the  society  of  the  other. 
They  married  to  secure  such  society.  And  the  obligation  rests 
upon  both  to  live  together  —  or,  as  the  expression  sometimes 
goes,  to  adhere.  This  is  the  universal  law.^  Its  observance 
is  essential  to  the  mutual  comfort  of  husband  and  wife,  and 
the  well-being,  if  not  the  existence,  of  their  children.  But 
to  this  rule  there  are  obvious  exceptions.  The  wife  is  not 
bound  to  live  with  her  husband  where  he  is  imprisoned,  or 
has  otherwise  ceased  to  be  a  voluntary  agent  and  to  perform 
the  duties  of  a  husband.  Nor  if  he  is  banished.  For  mar- 
riage does  not  force  the  parties  to  share  the  punishment  of  one 
another's  crimes.  This  was  the  rule  of  the  civil  as  it  is  that 
of  the  common  law.^  And  in  general  such  causes  as  would 
justify  divorce  in  any  State  justif}-  the  innocent  party  in 
breaking  off  matrimonial  cohabitation  likewise.  But  partial 
and  temporary  separation  for  purposes  connected  with  the 
husband's  profession  or  trade  — as,  for  instance,  where  he  is 
an  army  officer  —  constitutes  no  breach  of  the  marriage  re- 
lation unless  continued  beyond  necessary  and  reasonable 
bounds,  or  accompanied  by  negligence  to  provide,  while 
absent,  for  the  maintenance  of  wife  and  family.  And  under 
some  other  circumstances  cohabitation  may  be  properly  al- 


1  Lord  Stowell  observes  that  the  law  ver  v.  Oliver,  1  Hag.  Con.  361 ;  4  Eng. 

intrusts  the  husband  not  only  with  a  Ec.  429. 

certain  degree  of  care  and  protection,  -  1  Fras.  Dom.  Eel.  447,452. 

but  also  "with  authority  over  his  wife.  3  Co.  Litt.  133  :  1  Bl.  Com.  44.S ;  1 

He  is  to  practise  tenderness  and  affec-  Eras.    Dom.  Rel.  448 ;    2   Kent.  Com. 

tion,  and  obedience  is  her  duty."     Oli-  154. 

61 


§  36  THE   DOMESTIC   EELATIONS.  [PART   II. 

lowed  to  cease  for  a  time  without  involving  the  breach  of 
marital  obligations.^ 

§  36.  Breach  by  Desertion,  &c. ;  Duty  of  making  Cohabitation 
Tolerable.  —  This  subject  is  most  commonly  considered  where 
redress  is  sought  because  one  or  the  other  party  deserts  ; 
such  desertion  formerly  calling  for  the  restitution  of  conjugal 
rights,  but  in  these  days  furnishing  rather  a  cause  of  divorce 
to  the  injured  spouse,  not  to  speak  of  the  enlargement  of  an 
abandoned  wife's  rights  and  responsibilities,  despite  the  rules 
of  coverture.  These  matters,  and  particularly  divorce  for 
desertion,  are  found  duly  considered  in  other  books,  and  the 
duty  of  matrimonial  adherence  more  fully  developed.^  We 
observe  here  that,  in  conformity  to  the  world's  customs  and 
general  principle,  it  is  the  wife's  actual  withdrawal  from 
home  which  admits  the  less  readily  of  a  justifying  explana- 
tion, and  exposes  the  pair  to  scandal.^  But  the  husband  may 
be  at  fault  by  making  the  home  unfit  for  an  honest  wife  to 
occupy  with  dignity,  or  by  turning  his  wife  out,  or  even  by 
encouraging  her  to  leave  it  when  it  was  right  that  she 
should  remain.^  It  happens  often  that  the  husband  instead 
forsakes  the  home,  leaving  the  wife  in  it,  such  withdrawal 
being  rightful  or  wrongful  according  to  the  circumstances.^ 

Mere  frailty  of  temper  on  a  wdfe's  part,  not  shown  in 
marked  and  intolerable  excesses,  would  hardly  justify  a 
husband  in  withdrawing  the  protection  of  his  home  and 
society.^  But  it  is  held  that  the  wife's  violent  and  out- 
rageous behavior  justifies  a  husband  in  seeking  divorce  from 
bed  and  board,  and,  seemingly,  in  leaving  her."  The  moral 
duty  of  living  together  involves,  doubtless,  the  reciprocal 
obligation  of  making  that  life  agreeable,  according  to  the 
true  status  of  the  married  parties ;  but  the   extent  of  the 

1  See   2  Kent   Com.  181;    1  Fras.  *  McCormick  r.McCormick,  19Wis. 

Dom.  Eel.  240  et  seq. ;  Ih.  447  ;  Chre-  172. 

tien    V.    Husband,    17    Martin    (La.),         ^  McClurg's   Appeal,   60  Penn.  St. 

60.  300.     See,  as  to  divorce  for  desertion, 

-  See  Separation,   Divorce,  post;  1  Schonl.  Hus.  and  Wife,  §§  515-523. 
Bish.  Mar.  &  Div.  §§  771-810.  «  Yeatman  v.  Yeatman,  L.  R.  1  P.  & 

3  Ih. ;  Starkey  v.  Starkey,  21  N.  J.  D.  489. 
Eq.  135.  '  Lynch  v.  Lynch,  33  Md.  328. 

62 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  37 

legal  duty  is  not  so  easily  definable.  Upon  the  point  of  re- 
dress, in  fact,  codes  widely  differ ;  the  practical  difficulty 
being,  under  our  laws,  that  married  spouses  have  little  rem- 
edy until  it  comes  to  the  last  extremity  of  divorce.^  Mani- 
festations of  bad  temper  on  one  side  must  necessarily  weaken 
the  duty  of  adherence  on  the  other;  extreme  cruelty,  or 
cruel  and  abusive  treatment,  is  now  frequently  made  a  legal 
cause  of  divorce  ;  yet,  at  the  same  time,  mutual  forbearance 
and  self-sacrifice  are  essential  to  the  well-being  of  every 
household ;  marriage,  when  rightly  considered,  working  a 
harmony  of  character  by  the  constant  attrition  to  which  the 
two  natures  are  exposed. 

Under  this  head  we  may  add  that  the  duty  of  cohabitation 
or  adherence  is  not  fulfilled  by  literal  or  partial  compliance. 
Thus  the  refusal  of  sexual  intercourse  and  the  nuptial  bed, 
without  good  excuse,  is  a  serious  wrong  which  husbands,  at 
all  events,  are  disposed  to  construe  into  justifying  ground 
for  divorce.^  Living  in  the  same  house,  but  wilfully  declin- 
ing matrimonial  intimacy  and  companionship,  is  per  se  a 
breach  of  duty,  tending  to  subvert  the  true  ends  of  marriage. 
So,  too,  a  husband  who  unreasonably  withdraws  cohabitation 
from  his  wife  may  be  deemed  guilty  of  legal  desertion,  even 
though  he  continue  to  support  her.^  But  sexual  intercourse, 
the  use  of  the  same  chamber,  or  the  occupation  of  the  same 
bed,  should  be  mutually  regulated  with  considerations  of 
health  as  well  as  kindly  forbearance  ;  and  a  husband  who 
wantonly  abuses  his  wife  so  as  to  inflict  needless  pain  and  in- 
jury upon  her,  and  disregards  her  health  and  delicate  organi- 
zation, is  guilty  of  legal  cruelty.* 

§  37.  The  Matrimonial  Domicile.  —  As  there  must  be  a 
home,  so  there  is  also  a  matrimonial  domicile  of  the  parties 
recognized  by  universal  law.  And  the  husband,  as  dignior 
persona,  has  the  right  to  fix  it  where  he  pleases.  The  wife's 
domicile    merges   in   that   of  her    husband.      Grotius   says : 

1  See,  as  to  divorce  for  cruelty,  3  Yeatman  v.  Yeatman,  L.  R.  1  P.  & 
Schoul.  Hus.  &  Wife,  §§  507-514.  D.  489. 

2  See  Schoul.  Hus.  &  Wife,  §  528  ;  *  lb. ;  Moores  v.  Moores,  1  C.  E. 
Southwick  V.  Southwick,  97  Mass.  327 ;  Green,  275.  See  Sliaw  v.  Shaw,  17 
1  Bish.  Mar.  &  Div.  5th  ed.  §  778.  Conn.  180,  criticised  in  1  Bish.  §  760. 

63 


§  38  THE   DOMESTIC   RELATIONS.  [PART   II. 

"  2)e  domicillo  constituere  jus  est  marito.''''^  But  this  applies 
only  to  the  real  domicile  of  the  husband  ;  not  to  a  fictitious 
place  of  residence  which  he  may  take  up  for  a  special  pur- 
pose, or  as  an  involuntary  agent.  In  a  genuine  sense  the 
domicile  of  the  husband  becomes  that  of  the  wife,  and  wher- 
ever he  goes  she  is  bound  to  go  likewise  ;  not,  however,  unless 
his  intent  be  bona  fide  and  without  fraud  upon  her  person  or 
property  rights.^  In  certain  cases  the  wife  may  perhaps  be 
said  to  acquire  a  domicile  or  legal  forum  for  divorce  and 
similar  purposes.^  But  the  exception,  if  it  exist,  is  limited 
by  the  necessity.  To  a  wife  living  apart  from  her  husband, 
no  separate  domicile  is  conceded  for  testamentary  purposes.* 
Nor  does  a  change  of  the  wife's  abode  change  the  husband's 
or  the  matrimonial  domicile.^ 

§  38.  Same  Subject ;  Husband's  Right  to  establish  Domicile. 
—  Any  contract,  therefore,  which  the  husband  may  make 
with  his  wife  or  her  friends,  before  marriage,  not  to  take  her 
away  from  the  neighborhood  of  her  parents,  is  void.  Public 
policy  repudiates  all  contracts  in  restraint  of  such  marital 
rights.  There  might  be  circumstances  under  which  such  a 
promise  would  be  reasonable,  but  at  best  it  can  create  a 
moral  obligation  only.  The  husband  has  the  right  to  estab- 
lish his  domicile  at  any  time,  wlierever  he  pleases,  and  the 
wife  must  follow  him  through  the  world.^  If  she  refuses  to 
go  with  him,  his  own  conduct  being  upright  and  honorable  in 
the  premises,  she  places  herself  in  the  wrong,  and  while  she 
persists  he  is  not  bound  to  support  and  maintain  her." 

But  the  courts  of  our  day  hesitate  to  apply  a  rule  so  appar- 
ently harsh  as  that  announced  in  the  last  sentence.  With 
the  increasing  regard  for  female  privileges  has  grown  up  a 

1  2  Kent.  Com.  181;  1  Fras.  Dom.  *  Paulding's  Will,  1  Tuck.  (N.  Y.) 
Rel.  240  et  seq. ;  lb.  447.                               47. 

'■^1   Fras.   Dom.   Rel.    447,   448;  1  5  Porterfield  y.  Augusta,  67  Me.  556; 

Burge  Col.  &  For.  Laws,  260 ;  Whar-  Sclioles  v.  Murray  Iron  Works  Co.,  44 

ton  Confl.   Laws,   §§  43-47.     See  Von  Iowa,    190;  Johnson    v.   Johnson,    12 

Hoffman  v.  Ward,  4  Redf.  Surr.  244  ;  Bush,  485. 

Kingy.  Foxwell,  3  Ch.D.  518;  Schoul.  c  Hair   v.   Hair,    10  Rich.  Eq.  163; 

Hus.  &  Wife,  §  60     And  see  elemen-  McAfee    v.    Kentucky    University,   7 

tary  works  on  Domicile.  Bu.«h,  13-"). 

2  See  Divorce,  post.  '  Babbitt  v.  Babbitt,  69  III.  277. 

64 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  38 

strong  disposition  to  reduce  the  husband's  right  over  the 
matrimonial  domicile  to  a  sort  of  divisum  imperium.  The 
question  is  not  new,  whether  reasonable  exceptions  to  this 
rule  may  not  exist ;  as,  for  instance,  where  the  husband  pro- 
posed to  take  the  wife  into  an  enemy's  country  while  war 
was  waging,  or  on  a  journe}^  perilous  to  her  life.^  Such  ex- 
ceptions may  be  justified,  it  is  generally  admitted,  on  the 
ground  that  the  wife  would  be  thereby  exposed  to  bodily 
harm.  But,  whether  the  apprehension  be  that  of  personal 
violence,  or  ill  health  from  the  fatigue  of  a  journey  or  the 
change  of  climate,  little  favor  seems  to  have  been  shown  to 
the  wife  either  at  the  English  or  Scotch  law,  unless  the  cir- 
cumstances rendered  a  change  of  domicile  on  her  part  equiv- 
alent to  a  moral  suicide.^  At  the  present  day,  a  rule  less 
stringent  would  doubtless  be  applied.  A  husband  would  not 
be  permitted  to  remove  his  wife  to  some  remote  and  unde- 
sirable place  for  the  sake  of  punishing  or  tormenting  her,  or 
so  as  to  compel  her  to  stay  alone  where  he  did  not  mean  to 
reside  himself;  for  this  would  not  be  fixing  the  matrimonial 
domicile  with  honest  intent.  Nay,  more,  there  are  several 
recent  decisions  in  this  country  which  point  to  an  obligation 
on  the  husband's  part  to  show  reasonable  cause  why  his  wife 
should  follow  him  when  he  changes  his  abode.^ 

This  later  uncertainty  in  the  law  is  unfortunate.  Where 
a  pair  disagree  in  the  choice  of  a  home,  either  the  right  of 
decision  must  belong  to  one  of  them,  or  the  court  should  sit 
as  umpire.  No  one  has  suggested  tliat  the  wife  should  choose 
the  domicile,  nor  can  judicial  interference  be  well  called  in, 
except  to  divorce  the  parties.  Yet,  without  a  home  in  com- 
mon, of  what  avail  is  matrimony  ?  We  cannot  but  regret  that 
any  of  our  courts  should  seem  to  legalize  domestic  discord  ; 
that  there  should  be  good  American  authority  to  sanction  the 
wife's  refusal  to  accompany  her  husband  on  any  such  trivial 
pretext  as  "  the  dislike  to  be  near  his  relatives."  ^     Perhaps, 

1  Boyce  v.  Boyce,  23  N.  J.  Eq.  337.      v.  Powell,  29  Vt.  148.     See  Moffatt  v. 

2  See  1  Eras.  Dom.  Rel.  448.  Moffatt,  5  Cal.  280;  Cutler  v.  Cutler,  2 

3  Bishop  y.  Bishop,  ?.0  Penn.  St.  412;     Brews.  (Pa.)  511. 

Gleason  v.  Gleason,  4  Wis.  64 ;  Powell         *  Powell  v.  Powell,  29  Vt.  148. 

5  Qb 


§  40  THE   DOMESTIC    RELATIONS.  [PART   11. 

however,  the  harsh  remedy  usually  sought  to  be  applied  in 
modern  cases  —  divorce  for  the  wife's  wilful  desertion  —  may 
tempt  our  tribunals  to  relax  the  old  doctrine  of  conjugal 
obedience  for  her  benefit.  For,  after  all,  the  decision  is  in 
favor  of  prolonging  the  marriage  relation.^ 

§  39.  Domicile  relative  to  Alien  and  Citizen.  —  As  corollary 
of  the  general  proposition  already  announcer],  it  is  held  that 
an  alien  woman  marrying  with  a  citizen  of  the  United  States 
becomes,  by  virtue  of  such  marriage,  a  citizen  also,  with  the 
usual  capacity  as  to  purchase,  descent,  and  inheritance  ;2 
and  that  of  aliens  intermarried,  if  the  husband  becomes  a 
naturalized  citizen,  the  wdfe  in  like  manner  is  naturalized,  even 
though  she  has  not  yet  migrated  from  her  native  country.^ 

§  40.  Change  of  Wife's  Name  by  Marriage.  —  ]Marriage  at 
our  law  does  not  change  the  man's  name,  but  it  confers  his 
surname  upon  the  woman.  Until  a  decree  of  divorce,  giving 
a  married  woman  leave  to  resume  her  maiden  name,  goes  into 
full  effect,  or  widowhood  is  succeeded  by  a  new  marriage 
and  another  husband,  she  goes  by  her  former  husband's  sur- 
name. This  is  English  and  American  usage.  And  with  this 
actual  marriage  name,  it  would  appear  that  a  wife  can  only 
obtain  another  name  by  reputation.*      But  in  consideration 

1  The  English  rule  as  to  the  wife's  when  the  husband  asked  her  to  return, 

duty  of  adherence  still  continues  strict,  and  provided  funds  for  her  passage,  but 

A  wife  petitioned   for  divorce  on  the  she  wrote  that  her  liealth  would  not 

ground    of    her    husband's    desertion,  permit  her  to  do  so.     Here  all  corre- 

The  facts   showed   that  shortly  after  spondence  and  intercourse  ceased  until 

her  marriage  she  went  with  her  hus-  1856,   when   an   allowance    was  again 

band  to  Jamaica,  where  he  held  an  ap-  effected  through  the  intervention  of  a 

pointment  from  which  he  derived  not  relative  ;  this   the   husband   continued 

more  than  £100  a  year,  and  in  conse-  until   18G0,  and   then   stopped  it.     He 

quence  of  his  slender  income  she  had  appears  to  have  led  a  loose  life  after 

to  put  up  with  some   hardship.     Her  the  wife's  refusal  to  return.    The  court 

health  sufTered,  and  in  less  than  a  year,  lield  that  these  circumstances  did  not 

namely,  in  1846,  she  returned  to  Eng-  constitute  desertion  on  the  husband's 

land.     Her  husband  continued  abroad,  part,  nor  entitle  her  to  divorce.    Keech 

during  the  greater  part  of  the  time  at  v.  Keech,  L.  R    1  P.  &  D.  Gil  (1868). 

.Jamaica,  where  he  succeeded  in  getting  Adultery  being  proved,   however,  di- 

a  more  lucrative  appointment.     When  vorce  was  granted  on  that  ground, 

she    left   him    for   England   he   acted  -  Luhrs    v.   Eimer,   80   N.   Y.   171 ; 

kindly  to  her,  promised  to  allow  her  Kelly  r.  Owen,  7  Wall.  496. 

£30  a  year,  but  made  no  arrangement  ^  Kelly  i'.  Owen,  7  Wall.  406  ;  Head- 

fnr  a  permanent    separation.      Their  man  r.  Rose,  6S  Ga.  458. 

correspondence  continued  txntil   1851,  **  Fendall  v.  Goldsmied,  2  P.  D.  263. 

66 


CHAP.  II.]  PERSON   OF   THE  SPOUSE.  §  41 

of  the  rule  that  a  person  has  the  right  to  be  known  by  any 
name  he  or  she  chooses,  proceedings  under  the  assumed  name 
of  a  married  woman  have  been  upheld  after  judgment.^ 

§  41.  Right  of  one  Spouse  to  the  other's  Society ;  Suit  for 
Enticement.  —  Each  spouse  is  entitled  to  the  society  and  com- 
panionship of  the  other.  Inasmuch  as  the  husband  is  thus 
entitled,  he  may  recover  his  wife  from  any  person  who  would 
withhold  or  withdraw  her  from  him.  This  is  a  well-under- 
stood principle  the  world  over.^  And  the  common  law  gives 
him  the  right  to  sue  for  damages  all  persons  who  seek  to  entice 
her  away.^  But  in  such  cases  malice  and  improper  motive 
are  always  to  be  considered ;  and  parents  and  near  relatives 
stand  on  a  different  footing  from  strangers.  So  is  the  previous 
conduct  of  the  husband  towards  his  wife  a  material  element 
to  be  considered ;  since  this,  and  not  the  interference  of 
others,  may  have  occasioned  the  separation.  It  is  one  thing 
to  actively  promote  domestic  discord,  but  quite  another  to 
harbor,  from  motives  of  kindness  and  humanity,  one  who  seeks 
shelter  from  the  oppression  of  her  own  lawful  protector. 

Yet  such  conduct,  whatever  the  motives,  is,  on  the  part  of 
strangers,  exceedingly  perilous,  generally  open  to  miscon- 
struction, and  never  to  be  encouraged.  They  should  leave 
the  parties  to  their  lawful  remedies  against  one  another. 
With  parents  it  is  different.  There  are  several  cases  in  the 
American  reports  where  a  father  is  not  only  held  to  be  ab- 
solved from  liability  for  sheltering  his  daughter,  who  has  fled 
from  a  drunken  and  profligate  husband,  but  even  stimulated 
to  do  so.  "  A  father's  house,"  says  Chancellor  Kent,  "  is 
always  open  to  his  children  ;  and  whether  they  be  married  or 
unmarried,  it  is  still  to  them  a  refuge  from  evil  and  a  conso- 
lation in  distress.  Natural  affection  establishes  and  conse- 
crates this  asylum."*    But  this  does  not  justify  even  a  parent 

1  Clark  V.  Clark,  19  Ivans.  522.  21  Barb.  439 ;  Barnes  v.  Allen,  30  Barb. 

2  1  Fras.  Dom.  Rel.  240,  241.  663. 

3  1  Chitty  Pleading,  91  ;  Hutche-  *  Hutclieson  v.  Peck,  5  Johns.  196. 
son  V.  Peck,  5  Johns.  196  ;  Friend  v.  See  also  Friend  i\  Thompson,  Wright, 
Thompson,  Wright,  636  ;  Rabe  v.  636 ;  Bennett  v.  Smith,  21  Barb.  4.39 ; 
Hanna,  6  Ham.  530 ;  Bennett  v.  Smith,  Smith  v.  Lyke,  20  N.  Y.  Supr.   204  ; 

Payne  v.  Williams,  4  Baxt.  583. 

67 


§  41  THE   DOMESTIC    RELATIONS.  [PART   II. 

in  hostile  interference  against  the  husband  ;  for  the  latter's 
rights  are  still  superior  ;  and  the  father  must  give  up  his 
daughter,  and  the  marriage-offspring,  whenever  she  wishes 
to  return,  unless  tlie  proper  tribunal  has  decreed  otherwise  ; 
though  he  might,  we  suppose,  by  fair  arguments,  urged  to 
promote  her  true  good,  seek  to  dissuade  her  from  returning. 
The  legal  doctrine  seems  to  be  this,  that  honest  motives  may 
shield  a  parent  from  the  consequences  of  indiscretion,  while 
adding  nothing  to  the  right  of  actual  control  ;  the  intent 
with  which  the  parent  acted  being  the  material  point,  rather 
than  the  justice  of  the  interference;  that  a  husband  forfeits 
his  right  to  sue  others  for  enticement,  where  his  own  mis- 
conduct justified  and  actually  caused  the  separation  ;  but 
that  otherwise  his  remedy  is  complete  against  all  persons 
whomsoever,  who  have  lent  their  countenance  to  any  scheme 
for  breaking  up  his  household.^ 

Differences  of  sex  may  account  for  a  denial  of  the  entice- 
ment suit  to  the  wife,  though  her  right  to  her  husband's 
society  is  unquestionable.  Woman  claims  protection  where 
man  acts  for  himself.  Hence  it  is  held  that  a  wife  cannot, 
either  at  common  law,  or  under  statutes  not  clearly  enabling 
her,  maintain  an  action  against  a  third  person  for  having,  by 
wrongful  acts,  advice,  and  persuasion,  induced  her  husband  to 
abandon  and  become  separate  from  and  cease  to  maintain  her.^ 

1  A  curious  case  of  this  sort  came  rescinded  the  agreement,  demanded 
before  the  Supreme  Court  of  North  his  wife,  and,  upon  refusal  of  the  de- 
Carolina  in  1849.  The  defendant  had  fendant  to  give  her  up,  sued  him  in 
enticed  away  the  wife  of  the  plaintiff,  damages  The  court  sustained  him ; 
The  two  afterwards  entered  into  an  pronouncing  the  contract  to  be  "neither 
agreement  that  the  defendant  should  in  form  or  substance  a  contract  for  a 
keep  the  plaintiff's  wife  and  child  at  separation,  but  simply  a  license  to  har- 
his  own  home,  and  should  raise,  edu-  bor  the  wife  and  child,  securing  the 
cate,  and  provide  for  tlie  child  by  ap-  defendant  against  any  legal  responsi- 
propriating  the  portion  of  property  bility  for  so  doing  until  withdrawn." 
formerly  intended  for  the  mother's  And  it  was  further  intimated  that 
provision  ;  that  he  should  not  be  liable  such  a  contract  was  absolutely  void  as 
for  having  enticed  the  wife  away  ;  and  against  public  policy.  Barbee  v.  Arm- 
that  the  plaintiff  might  visit  his  wife  stead,  10  Ired.  530.  See  also  1  Burge 
and  child  not  exceeding  four  or  five  Col.  &  For.  Laws,  238,  for  a  like  doc- 
days  at  a  time.  The  wife  was  not  trine  at  the  civil  law. 
made  a  party  to  the  contract,  though  ^  Van  Arnam  v.  Ayers,  67  Barb, 
it  appears  to  have  been  made  with  544.  But  see  Breman  v.  Paascli,  7 
her  approval.    The  plaintiff  afterwards  Abb.  (N.  Y.)  N.  Cas.  249. 

68 


CHAP.  II.]       PERSON  OF  THE  SPOUSE.  §  44 

§  42.  Husband's  Duty  to  Render  Support.  —  This  subject 
will  be  considered  later  in  treating  of  the  wife's  necessaries, 
when  it  will  also  appear  that  our  married  women's  acts  tend 
to  certain  changes,  not  so  much  of  principle  as  application,  by 
extending  the  liability  for  family  supplies  to  property  such  as 
wives  now  hold  to  their  separate  use.  The  general  rule  of 
law  is  that  the  husband,  the  spouse  who  holds  and  fills  the 
purse,  is  bound  to  provide  the  family  support  and  means  of 
living.  The  style  of  support  requisite  —  of  lodging,  food, 
clothing,  and  the  like  —  is  such  as  befits  his  means  and  con- 
dition of  life.  A  wife  is  not  usually  justified  in  leaving  her 
husband  and  the  common  home  so  long  as  the  husband  treats 
her  kindly,  and  provides  to  the  extent  of  his  ability,  even 
though  retrenchment  in  the  style  of  living  may  be  needful 
from  one  cause  or  another.^  But  reducing  the  wife's  com- 
forts needlessly,  and  from  sinister  motives,  she  may  justly 
complain  of,^  and  criminal  prosecution  with  recognizance  is 
found  to  aid  the  common  law  in  compelling  a  competent  hus- 
band to  support  his  family. 

§  43.  Wife's  Duty  to  render  Services.  —  The  wife's  obliga- 
tion to  render  family  services  is  at  least  co-extensive  with 
that  of  the  husband  to  support  her  in  the  family,  these  ser- 
vices and  the  comfort  of  her  society  being  in  fact  the  legal 
equivalent  of  such  support.^  Hence,  as  it  is  held,  the  wife  of 
an  insane  man  cannot  claim  special  compensation  out  of  his 
estate  for  taking  care  of  him,  even  though  such  were  the 
express  contract  between  herself  and  the  guardian.*  Doubt- 
less it  would  be  bad  policy  to  permit  marital  services  on  either 
side,  however  meritorious,  to  become  a  matter  for  money  rec- 
ompense, and  to  strike  a  just  balance  is  impossible. 

§  44.  Right  of  Chastisement  and  Correction. — Though  either 
spouse  may  be  the  more  dangerous  companion,  because  of 
greater  physique,  daring,  recklessness,  or  depravity,  nature 

1  See  Skean  v.  Skean,  33  N.  J.  Eq.  3  Randall  ;;.  Randall,  37  Mich.  563, 
148.  per    Cooley,  J. ;  Grant    v.   Green,   41 

2  Boyce  v.  Boyce,  23  N.  J.  Eq.  337.     Iowa,  88. 

And  see  Necessaries,  post ;  also  People         *  Grant  v.  Green,  41  Iowa,  88. 
V.  Pettit,  74  N.  Y.  320;  Schoul.  Hus. 
&  Wife,  §  67. 

69 


§  44  THE  DOMESTIC   KELATIONS.  [PAKT   II. 

gives  the  husband  the  usual  advantage.  In  a  ruder  state  of 
society  the  husband  frequently  maintained  his  authority  by 
force.  The  old  common  law  recognized  the  right  of  moder- 
ate correction,  which,  according  to  Blackstone,  was  deemed  a 
privilege  by  the  lower  orders  in  his  day.^  The  civil  law  went 
still  further,  permitting,  in  certain  gross  misdemeanors,  vio- 
lent flogging  with  whips  and  rods.^  But  since  the  time  of 
Charles  II.  the  wife  has  been  regarded  more  as  the  compan- 
ion of  her  husband  ;  and  this  right  of  chastisement  may  be 
regarded  as  exceedingly  questionable  at  the  present  day. 
The  rule  of  persuasion  has  superseded  the  rule  of  force. 
Few  cases  of  importance  are  to  be  found  on  this  subject. 
In  England,  not  many  years  ago,  where  a  wife  sought  divorce 
from  bed  and  board  for  cruelty,  it  was  shown  that  the  hus- 
band had  spit  upon  her,  pushed  and  dragged  her  about  the 
room,  and  once  slapped  her  face ;  and  upon  this  proof  the 
divorce  was  granted.^  The  right  to  inflict  corporal  punish- 
ment upon  the  wife  has  never  been  favored  in  this  country, 
and  its  exercise  would  now  generally  justify  proceedings  for 
a  divorce.  Indeed,  our  latest  State  decisions  emjjhatically 
deny  that  the  right  longer  exists  either  in  England  or  this 
country.*  It  may  be  added  that  the  wife  should  not  chastise 
her  husband  ;  nor  provoke  harsh  treatment  by  her  own  vio- 
lence, foul  abuse,  and  misconduct.^ 


1  1  Bl.  Com.  444,  445.  In  Adams  v.  Appeal,  57  Penn.  St.  232;  Fulgham  v. 
Adams,  100  Mass.  365,  Chapman,  C.  J.,  State,  46  Ala.  143;  Owen  v.  btate,  7 
states  the  old  form  of  the  writ  of  sfcpp/j-  Tex.  Ajjp.  329;  Gorman  v  State,  42 
cavit  for  protection  of  the  wife  against  Tex.  221 ;  1  Bish.  §  754,  and  cases 
her  husband;  viz.,  that  the  husband  cited.  In  State  v.  Rhodes,  1  Phiil.  (N. 
should  not  do  other  damage  to  her  per-  C.)  453,  the  right  of  moderate  correc- 
son  "  than  wliat  reasonably  belongs  to  tion  was  recently  claimed.  But  the 
her  husband  for  the  purpose  of  the  gov-  opposite  rule  is  announced  in  the  later 
ernment  and  chastisement  of  his  wife  case  of  State  v.  Oliver,  70  N.  C.  60. 
lawfully."  Corporal  chastisement  is  not  justified, 

2  Flagellis  et  fustibus  aci'iter  verberare  though  the  wife  be  drunk  or  insolent. 
uxorem.     See  1  Bl.  Com.  445.  Commonwealth  v.  McAfee,  108  Mass. 

3  Saunders  v.  Saunders,  1  Rob.  Ec.  458 ;  Pearman  v.  Pearman,  1  Swab.  & 
549.     And  see  Schoul.  Hus.  &  Wife,  T.  601. 

§  507;   1   Bish.  Mar.   &  Div.  6th  ed.         ^  Knight  v.  Knight,  31  Iowa,  451, 
§§  748,  754.  and  cases  supra ;  Prichard  v.  Priuhard, 
*  Gholston  V.  Gholston,  31  Geo.  625  ;  3  Swnb.  &  T.  523  ;  Trowbridge  v.  Car- 
Pillar  V.  Pillar,  22  Wis.  658 ;  Edmonds'  lin,  12  La.  Ann.  882. 

70 


CHAP.  II.]  PEKSON    OF   THE   SPOUSE.  §  45 

But  either  spouse  may  use  force  in  self-defence.  And  the 
husband  may  restrain  his  wife  from  acts  of  violence  against 
others  as  well  as  himself  in  person  or  property,  —  most  cer- 
tainly wherever  the  law  makes  him  answerable  in  damages 
for  her  misbehavior ;  ^  and  may  prevent  her  unwarrantable 
interference  with  the  due  exercise  of  his  parental  authority. 

§  45.  Husband's  Right  of  Gentle  Restraint.  —  The  right  of 
gentle  restraint  over  the  wife's  person  rests  upon  better 
authority  than  that  of  chastisement.  This  right,  however, 
depends  upon  the  proposition  that  the  husband  is  dignior 
persona.  And  its  exercise  is  often  to  be  justified  in  the 
courts  on  the  same  grounds;  namely,  that  the  husband  must 
answer  to  others  for  his  wife's  conduct.  Blackstone  says  that 
in  case  of  any  gross  misbehavior  the  husband  can  restrain 
his  wife  of  her  liberty.  The  later  expression  of  Kent  is  that 
he  may  resort  to  "gentle  restraint." ^  Strong  instances  for 
the  exercise  of  this  right  occur  where  the  wife  has  eloped 
with  a  libertine,  and  the  husband  wishes  to  bring  her  home  ; 
or  where  she  purposes  an  elopement,  and  he  seeks  to  prevent 
it ;  or,  perhaps,  where  she  goes  recklessly  into  lewd  company .^ 
Restraint  may  also  be  justified  where  the  wife  becomes  insane, 
threatens  the  husband  with  danger,  or  wantonly  destroys  his 
property.^ 

So,  too,  the  husband,  by  virtue  of  his  marital  autliority 
over  his  own  household,  might  be  allowed,  if  not  by  phj'sical 
force,  at  least  by  moral  coercion,  to  regulate  her  movements 
so  as  to  prevent  her  from  going  to  places,  associating  with 
people,  or  engaging  in  pursuits,  disapproved  by  himself  on 
rational  gi'ounds.  This  doctrine  has  been  asserted  in  Eng- 
land ;  and  Mr.  Fraser  carries  it  to  the  extent  of  forbidding 
her  relatives  to  visit  her  ;  "  for,"  he  observes,  "  though  the 


^  2  Kent  Com.  181  ;  People  v.  Win-  mour  in  the  act  of   adultery  is  only 

ters,  2  Parker  (N.  Y.  Cr.),  10;  1  Bl.  guilty  of  manslaughter.    See  Regina  v. 

Com.    445 ;   Richards    v.   Richards,   1  Kelly,  2  Car.  &  K  814. 
Grant.  389.  4  g  Mod.  22  ;  1  Stra.  477  ;  In  re  Price, 

2  2  Kent  Cora.  181 ;  1  Bl.  Com.  445.  2   Post.   &  F.   263  ;    State   v.  Craton, 

3  So  strongly  does  the  common  law  6  Ire.   164.     And  see  1  Bish.  Mar.  & 
detest  conjugal  unfaithfulness,  that  the  Div.  §  756. 

hushand  who  kills  his  wife  or  her  para- 

71 


§  46  THE   DOMESTIC   RELATIONS.  [PART  XL 

wife  may  be  very  amiable,  her  connections  may  not  be  so."  ' 
But  this  rule  is  to  be  laid  down  with  great  caution,  and  it 
may  be  considered  especially  unpopular  in  America.  Mr. 
Justice  Coleridge,  in  an  English  case,  observes  that  the  hus- 
band's right  must  not  be  exercised  unnecessarily  or  with 
undue  severity  ;  and  that  the  moment  the  wife,  by  her  return 
to  conjugal  duties,  makes  the  restraint  of  her  person  unneces- 
sary, such  restraint  becomes  unlawful.^ 

Our  modern  doctrine  is  that  force,  whether  physical  or 
moral,  systematically  exerted  to  compel  the  submission  of  a 
wife  in  such  a  manner,  and  to  such  a  degree,  and  during  such 
a  length  of  time,  as  to  injure  her  health  and  threaten  disease, 
is  legal  cruelty .2 

§46.  Regulation  of  Household,  Visitors,  &c.  —  From  the 
common-law  relation  of  husband  and  Mife  it  follows,  as  our 
last  section  indicates,  that  the  general  regulation  of  a  house- 
hold is  the  privilege  of  the  husband,  who  is  its  lawful  head. 
The  wife  in  this  respect  is  to  be  viewed  as  his  representative 
or  executive  officer,  properly  entrusted  with  domestic  details, 
and  particularly  with  the  supervision  of  female  menials  and 
their  M^ork.  Husbands  are  sometimes  blameworthy  in  the 
course  of  such  regulation  for  pettiness,  meanness,  and  incon- 
siderateness  towards  their  wives.  And  yet  households  differ, 
and  legal  cruelty  cannot  readil}^  be  predicated  of  such  con- 
duct further  than  that,  in  divorce  suits,  misbehavior  of  this 
kind  is  frequently  alleged  in  aggravation  of  actual  cruelty 
otherwise  practised,  and  so  as  to  give  body  to  the  latter 
charge.  It  cannot  be  called  cruelty  or  a  breach  of  marital 
dut}^  justifying  legal  interference,  for  a  married  householder, 
however  large  his  establishment,  to  take  the  settlement  of 
the  little  bills  upon  himself,^  or  the  hiring  and  discharge  of 
the  servants. 

As  to  the  question  how  far  the  wife  is  bound  to  observe  the 

1  1  Fras.  Dom.  Eel.  459.  This  ob-  3  Kelly  v.  Kelly,  L.  R.  2  P.  &  D.  31  ; 
servation  was  made  by  Lord  Stowell  Bailey  v.  Bailey,  97  Mass  373.  See 
in  Waring  v.  Waring,  2  Hag.  Con.  153 ;     Schoul.  Hus.  &  Wife,  §§  507-510. 

1  Eng.  Ec.  210.  *  Evans  v.  Evans,  1  Hag.  Con.  35, 

2  In  re  Cochrane,  8  Dowl.  P.  C.  631.     115. 

72 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  47 

husband's  directions  in  entertainment,  tlie  choice  of  visitors, 
the  arrangement  of  the  rooms,  and  so  on,  the  English  rule  is 
still  strict,  or,  rather,  permissive  of  the  husband's  sway.  The 
wife  is  expected  to  conform  to  her  husband's  habits  and 
tastes,  even  to  his  eccentricities,  provided  her  health  be  not 
seriously  endangered  by  so  doing.  And  though  he  should 
restrict  the  calling  list  to  a  certahi  set  agreeable  to  himself 
alone,  or  interdict  intercourse  with  her  family,  or  prevent  her 
from  paying  a  visit  to  his  own  relatives,  all  of  which  we  may 
Avell  presume  to  be  unkind  and  unreasonable,  yet  this  alone  is 
not  sufficient  ground  for  divorce.^  Nor,  as  it  has  been  held 
ia  this  country,  would  divorce  be  granted  simply  because  he 
had  forbade  her  to  atteud  a  particular  church  of  which  she 
was  a  member.^  Modern  American  precedent,  however,  on 
all  these  points  is  quite  scanty.  And  whether  the  husband 
can  allege  misconduct  against  his  wife,  or  obtain  redress  on 
his  part  if  she  rebels  against  oppressive  discipline  of  this  kind, 
is  extremely  doubtful.  Whims  and  caprices  of  the  husband, 
submission  to  which  endangers  the  wife's  health,  need  not  be 
followed,  and  may  even  be  relieved  against  as  legal  cruelty ;  ^ 
and  perhaps  the  former  should  be  said  of  constraint  upon 
religious  worship  as  the  worshipper's  conscience  dictates  ;  for 
the  husband's  right  to  manage  his  house  and  wife  must  doubt- 
less be  understood  to  have  rational  limits. 

§  47.  Custody  of  Children.  —  The  custody  of  children  be- 
longed at  common  law  to  the  father.  Blackstone  observes  : 
"  A  mother,  as  such,  is  entitled  to  no  power,  but  only  to  rev- 
erence and  respect."  *  But  by  an  English  statute,  passed  in 
1839,  the  court  of  chancery  is  permitted  to  interfere  and 
award  the  custody  of  children  to  such  parent  as  may  be 
deemed  most  suitable.  Its  special  object  was  to  enable  mar- 
ried women  who  should  be  ill-treated  by  their  husbands  to 
assert  their  rights  without  the  fear  of  being  separated  from 


1  Neeld  v.  Neeld,  4  Hag.  Eo.  263 ;         2  Lawrence  v.   Lawrence,  3  Paige, 

D'Aguilar   v.   D'Aguilar,    1    Hag.   Ec.  267. 

773  ;  Waring  v.   Waring,  2  Hag.  Con.  3  Kelly  v.  Kelly,  L.  R.  2  P.  &  D.  31 ; 

153  ;  Shaw  v.  Shaw,  17  Conn.  189  ;  Ful-  1  Bish.  §'758. 
ton  V.  Fulton,  36  Mo.  517.  ■•I  Bl.  Com.  453. 

73 


§  48  THE   DOMESTIC   RELATIONS.  [PART  II. 

their  offspring.^  In  this  country  the  tendency  of  legish^tion 
is  to  place  the  wife  upon  an  equal  footing  with  her  husband 
in  this  respect,  so  that  husband  and  wife  together  shall  have 
in  their  children  a  joint  interest  and  control,  which  the  courts 
are  to  regard  as  distinct  only  when  the  welfare  of  these  ten- 
der beings  makes  judicial  intervention  necessary.^ 

§  48.  Remedies  of  Spouses  against  each  other  for  Breach  of 
Matrimonial  Obligations.  —  As  no  legal  process  can  safely  be 
enforced  to  compel  husband  and  wife  to  live  together,  against 
the  will  of  either,  so  the  peace  of  society  forbids  that  they 
should  sue  one  another  for  damages  for  breach  of  the  marital 
obligations.  Here  again  is  marriage  sui  generis,  and  not  like 
other  contracts.  But  the  failure  of  the  one  to  perform  recog- 
nized duties  may  sometimes  absolve  the  other  from  certain 
corresponding  obligations.  Thus,  if  the  wife  leaves  her  home 
without  justifiable  cause,  the  husband  may  refuse  to  support 
her.3  If  the  husband  is  cruel,  or  makes  his  home  unfit  for  a 
chaste  woman  to  live  in  (which  is  a  species  of  cruelty),  the 
wife  may  leave  and  compel  him  to  support  her  elsewhere.* 
This  is  well  recognized  law.  In  general,  however,  such  vio- 
lation of  marital  obligations  is  effectually  punishable,  not  by 
enforcing  them  as  in  the  old  English  suit  for  restitution  of 
conjugal  rights,  which  is  not  recognized  in  the  United  States, 
but  by  putting  an  end  to  the  relation  altogether.^  And  it  is 
in  the  modern  proceedings  for  divorce  that  we  now  find  the 
subject  of  marital  obligations  most  frequently  discussed,  with, 
however,  a  bias  towards  the  construction  of  the  divorce 
statutes  themselves. 

Husband  and  wife  may  be  indicted  for  assault  and  battery 
upon  each  other.^    This  is  a  means  of  redress  not  unfrequently 

1  2  &  3  Vict.  c.  54;  Warde  v.  Warde,  ^  gee  1  Bish.  Mar.  &  Div.  §  771 ; 
2  Ph.  786.  1   Fras.    Dom.   Eel.    452;    Adams    v. 

2  See  790s;,  Parent  and  Child,  ch.  3,  Adams,  100  Mass.  365;  Briggs  v. 
where  the  svibject  is  considered  at  Briggs,  20  Mich.  34;  Schoul.  Hus.  & 
length,   as   more   appropriate    to   that  Wife,  §§  72-77. 

branch  of  the  family  law.  ^  Bradley   v.    State,   Walker,    156 ; 

s  2  Kent  Com.  147  ;  Manby  v.  Scott,  State  v.  Mabrey,  64  N.  C.  592;  Whipp 
1  Mod.  124 ,  1  Bl.  Com.  448.  v.  State,  34  Ohio  St.  87. 

4  Ilnnliston  v.  Smyth,  3  Bing.  127, 
And  see  post,  as  to  wife's  necessaries. 

74 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  50 

sought  against  cruel  husbands,  especially  among  those  of  low 
surroundings,  where  drunkenness  is  common,  and  religion 
treats  divorce  for  cruelty  with  disfavor  ;  and  a  husband  who 
beats  his  wife  inexcusably  may  be  convicted  of  this  offence.^ 
So,  too,  the  offending  spouse  may  be  bound  to  keep  the  peace. 
For  unreasonable  and  improper  checks  upon  her  liberties,  the 
wife  may  have  relief  on  habeas  corpus.  But  the  writ  is  not 
available  for  the  husband  to  secure  the  person  of  his  wife, 
voluntarily  absenting  herself  from  his  house.^ 

§  49.  The  Spouse  as  a  Criminal ;  Private  Wrongs  and  Public 
"Wrongs  compared.  —  We  shall  find  the  doctrine  of  coverture 
affecting  the  liability  of  a  married  woman  for  her  fraud  or 
injury,  so  that  her  husband  must  respond  toothers  in  damages 
for  her.3  But  here  the  private  wrong  and  the  public  wrong 
stand  contrasted.  The  immunity  of  the  wife  does  not  extend 
to  criminal  prosecutions.  For,  as  Blackstone  observes,  the 
union  is  only  a  civil  union.^  Or,  to  come  more  to  the  point, 
it  would  be  cruel  and  unjust  to  punish  one  person  for  the 
crime  of  another,  or  even  to  compel  the  two  to  bear  the 
penalty  together  ;  while  it  would  be  impolitic,  as  well  as  un- 
just, to  allow  any  relation  which  human  beings,  morally  re- 
sponsible, might  sustain  with  one  another,  to  absolve  either 
from  public  accountability.  Here  coverture  as  a  theory  con- 
tradicts itself,  by  leaving  the  wife  answerable  alone  for  her 
crimes,  just  as  a  single  woman.  The  utmost  the  law  can  do 
is  to  furnish  a  presumption  of  innocence  in  her  favor  in  cases 
where  the  coercion  of  her  husband  may  be  reasonably  inferred. 

§  50.  Presumption  of  Wife's  Coercion,  hovr  far  carried.  —  This 
indulgence  of  presumed  innocence,  it  is  said,  is  carried  so  far 

1  In  North  Carolina,  where  the  right  vated  case   was    lately  considered    a 

to   moderately   chastise   has   been    so  "  cruel    and    unusual  "    punishment, 

reluctantly  yielded,  it  is  admitted  that  State  v.  Driver  78  N.  C.  423. 
if  the    circumstances    involve   malice,  ^  £'x/5a;-fe  Sandiland,  12  E.  L.  &  Eq. 

cruelty,  or  the  infliction  of  permanent  40-3.     See  Adams  v.  Adams,  100  Mass. 

injury  upon  the  wife,  the  husband  may  365,  as    to  the   old  writ  of  supplicavit 

properly  be  convicted   of  assault   and  formerly  issued  for  protection  of  the 

battery.     State  v.  Oliver,  70  N.  C.  60.  wife  against  her  husband. 
But  in  this  State  trivial  complaints  are         ^  See  pout,  c.  4. 
not  favored.     And  a  sentence  to  im-         *  1  Bl.  Com.  443. 
prisonment  for  five  years  in  an  aggra- 

75 


§  50  THE  DOMESTIC  KELATIONS.  [PART    II. 

as  to  excuse  the  wife  from  punishment  for  theft,  burglary,  or 
(jtlier  civil  offences  "  against  the  laws  of  societ}^"  when  com- 
mitted in  the  presence  or  by  the  command  of  her  husband ; 
but  not  so  as  to  exculpate  the  wife  for  moral  offences.  For 
7nala  prohibita  she  is  not  punished,  for  mala  in  se  she  is. 
Such  a  distinction  is  variable  and  somewhat  shadowy  ;  the 
line  seems  to  be  drawn  more  wisely,  if  at  all,  between  such 
heinous  crimes  as  murder  and  manslaughter,  and  the  lighter 
offences.^  And  the  better  opinion  is,  decidedly,  that  at  the 
most  coercion  is  only  a  presumption,  which  may  be  rebutted 
by  evidence  to  the  contrary.^ 

The  presumption,  therefore,  that  in  the  less  heinous  crimes 
committed  by  the  wife  in  her  husband's  presence,  the  wife 
acts  under  the  husband's  coercion,  may  in  any  case  be  repelled 
by  suitable  proof  ;  and  when  it  is,  the  wife,  as  one  acting  sui 
Juris,  must  be  held  responsible  for  the  wrong  done  by  her  in 
her  husband's  company.  This  is  the  true  rule.  Husband 
and  wife  may,  therefore,  both  be  indicted  and  convicted  of  a 
crime  where  it  appears  that  both  were  guilty  of  the  offence 
and  the  wife  was  not  coerced.^  In  most  of  the  latest  cases 
where  the  wife  is  indicted,  the  presumption  of  coercion  has 
been  regarded  as  something  to  be  easily  rebutted,  especially 
in  that  numerous  class  of  cases  which  relates  to  the  illegal 
sale  of  liquors,  a  business  in  which  married  women  frequently 
engage  understandingly.*  And  where  the  crime  is  heinous, 
and  the  presence  and  command  of  the  husband  do  not  con- 
cur, a  jury  may  readil}^  find  the  wife  independently  guilty.^ 

1  2  Kent  Com.  11th  ed.  150;  4  Bl.  *  See  State  ;;.  Cleaves,  59  Me.  298; 
Corn.  28,  29,  and  Christian's  notes ;  1  Commonwealth  v.  Tryon,  99  Mass. 
Hawk.  P.  C.  b.  1,  ch.  1,  §9;  1  Russ.  442;  Commonwealth  v.  Pratt,  126 
Crimes,  18-24.  Mass.  462. 

2  2  Kent  Com.  11th  ed.  150;  State  ^  Presumption  of  coercion  rebutted 
V.  Parkerson,  1  Strobh.  169 ;  1  Russ.  in  a  murder  case,  where  wife  had  con- 
Crimes,  22;  2  Lew.  C.  C.  229;  Uhl  v.  spired  with  her  husband  to  commit 
Commonwealth,  6  Gratt.706  ;  Wagener  robbery.  IMiller  v.  State,  25  Wis.  384. 
V.  Bill,  19  Barb.  321;  cases  infra;  1  In  People  v.  Wright,  38  Midi.  744, 
Greenl.  Ev.  10th  ed.  §  28.  where  a  wife,  participating  with  her 

3  Goldstein  i".  People,  82  N.  Y.  231 ;  husband  in  a  robbery,  throttled  the 
Mulvey  v.  State,  43  Ala.  316  ;  State  i'.  victim  and  told  him  to  keep  still,  while 
Potter,  42  Vt.  495 ;  People  v.  Wright,  her  husband  and  a  confederate  rifled 
.38  Mich.  744;  State  v.  Camp,  41  N.  J.  his  pockets,  a  verdict  of  independent 
L.  300.  guilt  against  iier  wns  sustained. 

76 


CHAP,  n.]       PERSON  OP  THE  SPOUSE.  §  52 

A  wife  who  committed  larceny  by  her  husband's  bare  com- 
mand, when  he  was  not  present,  has  been  held  liable  tliere- 
for  ;  and  our  present  tendency  is  to  refuse  exculpation  to  the 
wife  unless  the  husband  commanded  and  was  near  enough 
besides  to  exert  his  marital  influence  upon  her  participation 
in  accomplishing  the  particular  crime. ^ 

§  51.  Offences  against  the  Property  of  One  Another.  —  Pub- 
lic policy  forbids  that  either  spouse  should  molest  the  person 
of  the  other  with  impunity .^  But  as  to  the  property  of  a 
spouse  our  law  pursues  a  distinction.  Accordingly,  it  is  well 
established  that  the  wife  cannot  be  found  guilty  of  stealing 
the  goods  of  her  husband,  inasmuch  as  she  resides  with  him 
and  has  possession  of  the  goods  b}'  virtue  of  the  marriage 
relation.^  And  as  .to  the  husband,  whose  legal  possession 
and  control  of  his  wife's  property  during  wedlock  is  far 
stronger,  it  is  held  that,  not  even  upon  the  ground  that  a 
certain  building  was  his  wife's  separate  property,  can  he  be 
convicted  of  arson  for  setting  it  on  fire.^ 

§  52.  Mutual  Disability  to  Contract,  Sue,  &c.  —  Husband 
and  wife  cannot  make  gifts  or  sales  to  one  another  during 
coverture,  though  the  same  parties  might  have  done  so  before 
and  in  contemplation  of  marriage.  Nor  can  they  in  other 
respects  contract  or  enter  into  covenants  with  one  another. 
Nor  can  one  sue  the  other.^  But,  as  we  shall  hereafter  see, 
equity  and  modern  legislation  introduce  a  different  princi- 
ple. This  disability  of  the  spouses  to  sue  one  another  is  not 
merely  the  technical  one  that,  under  the  old  procedure,  hus- 
band and  wife  must  join,  but  is  founded  on  the  principle  that 

1  Seiler   v.   People,   77   N.  Y.  411 ;  *  Snyder  v.  People,  26  Mich.   106. 

State  V.  Camp,  41  N.  J.  L.  306;  State  Modern  American  statutes  frequently 

V.  Potter,  42Vt.  495;  Commonwealth  change   this   last    rule.      See    Schoul. 

V.  Lewis,  1  Met.  151 ;  Commonwealth  Hus.  &  "Wife,  Appendix.     And  see  >b. 

V.  Feeney,   12  Allen,   560 ;    Common-  §§  78,  79. 

wealth?;.  Munsey,  112  Mass.  287;    Ed-         ^  Lord    Hardwieke,    in    Lannoy   v. 

wards    v.   State,   27   Ark.    493.       See  Duchess   of  Athoi,  2  Atk.  448  ;  1  Bl. 

further,  Schoul.   Hus.   &  Wife,   §§  76-  Com.  442  ;  2  Kent  Com.  129.    The  mar- 

78.  ried  women's  acts  in  this  country  have 

^  See,  <?.  (7.,  as  to  remedies  for  assault  clianged  the  common  law  greatly  as  to 

and  battery  ;  supra,  §  48.  the  mutunl  riglit  of  suit.     And  see,  as 

^  Queen  v.  Kenny,  2  Q.  E.  D.  307;  to  modern  rules,  c.  14,  post,  Transac- 

Lamphier  v.  State,  70  Ind.  317.  tious  between  Husband  and  Wife. 

77 


§  63  THE   DOMESTIC   RELATIONS.  [PART  U. 

husband  and  wife  are  one.^  There  is  sound  policy,  moreover, 
in  discouraging  the  pair  from  making  of  their  matrimonial 
bickerings  a  cause  of  action  for  damages  against  one  another. 
However  it  may  be,  at  this  day,  therefore,  as  to  actions  of 
contract,  or  proceedings  in  equity,  arising  out  of  their  distinct 
property  relations,  the  wife  has  no  cause  of  Action  in  damages 
against  her  husband  for  a  pure  tort  committed  upon  her  per- 
son during  the  marriage  relation,  such  as  assault  or  false  im- 
prisonment. And  as  the  objection  to  such  actions  is  not 
merely  one  of  procedure,  the  fact  that  she  has  since  jjrocured 
a  divorce  will  not  enable  her  to  bring  such  a  suit.^ 

§  53.  Mutual  Disqualification  as  Witnesses.  —  One  of  the 
most  important  of  the  mutual  disabilities  of  the  marriage 
state  is  the  disqualification  of  husband  and  wife  to  testify  as 
witnesses  in  the  courts  for  or  against  one  another.  Black- 
stone  places  this  prohibition  on  a  technical  ground,  —  unity 
of  the  person  ;  for,  he  says,  if  they  testify  in  behalf  of  one 
another,  they  contradict  the  maxim,  "  Nemo  projjrid  caiisd 
testis  esse  debet ;''^  and,  if  against  one  another,  that  other 
maxim,  "  Nemo  tenetur  se  ipsum  accusare."  ^  He  also  sug- 
gests interest  as  another  ground  for  the  rule,  and  this  doubt- 
less is  a  good  one.  But  a  more  solid  reason  than  either  is 
that  of  public  policy.  "The  happiness  of  the  married  state," 
says  My.  Greenleaf,  "  requires  that  there  should  be  the  most 
unlimited  confidence  between  husband  and  wife;  and  this 
confidence  the  law  secures,  by  providing  that  it  shall  be  kept 
forever  inviolable ;  that  nothing  shall  be  extracted  from  the 
bosom  of  the  wife  which  was  confided  there  by  the  hus- 
band." 4 

So  unyielding  is  this  rule,  that  mutual  consent  will  not 
authorize  the  breach  of  it.^     Whether  the  suit  be  civil  or 


1  Blackburn,  J.,  in  Phillips  v.  Bar-  lee  v.  McLoon,  10  Gray,  488,  prefers  to 
net,  1  Q.  B.  D.  430.  consider  that  interest,  more  than  policy, 

2  Phillips  r.  Barnet,  1  Q.  B.  D.  436  ;  determined    the    question    at   common 
Abbott  V.  Abbott,  07  Me.  304.  law. 

3  1  Bl.  Com.  44.3.  ^  1  Greenl.   Evid.  §  340,  and  cases- 
*  1  Greenl.  Evid.  §2-54.     See  also  2  cited;  Lord    Ilardwicke,  in  Barker  v. 

Kent  Com.  178-180,  to  the  same  effect.  Dixie,  Cas.  temp.  Hardw.  204  ;  Davis  v. 

But  apparently  Chapman,  J.,  in  Peas-  Dinwoody,  4  T.  R.  679,  per  Lord  Ken- 

78 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  53 

criminal,  in  law  or  at  equity,  it  matters  not.  Form  yields  to 
substance  in  procedure,  for  the  sake  of  excluding  such  testi- 
mony. And  after  coverture  has  terminated  by  death  or 
divorce,  still  the  prohibition  lasts  as  to  all  which  took  place 
while  the  relation  existed.^  The  disability  of  the  husband  is 
in  this  respect  as  great  as  that  of  the  wife.^  The  rule  applies 
alike  to  evidence  of  declarations  made  by  husband  and  wife 
for  or  against  one  another,  and  to  their  testimony  in  person.^ 
Nor  is  a  wife  a  competent  attesting  witness  to  a  will  which 
contains  a  devise  to  her  husband;^  nor. one  claiming  as 
widow,  the  right  to  administer,  competent  to  establish  her 
marriage.^  Nor  are  the  spouses  competent  witnesses  for  or 
asrainst  one  another  in  a  suit  for  divorce  on  the  ground  of 
adultery,  nor  in  proceedings  for  bigamy  against  one  of  them.^ 
And  it  is  said  that  the  law  guards  the  marital  confidence  of 
silence  as  well  as  that  of  communication.' 

This  rule  of  exclusion  applies  only  to  persons  occupying 
the  bona  fide  relation  of  husband  and  wife  ;  not,  of  course,  to 
a  mistress,  or  parties  in  immoral  cohabitation.  But  at  the 
same  time  the  courts  lean  kindly  towards  prima  facie  mar- 
riages, and  make  no  rigid  investigation.^     The  policy  of  the 


yon;  contra,  Pedley  17.  Wellesley,  3  Car.  ^  i   Greenl.   Evid.    §   341;  6  T.  R. 

&P.  558;  2  Kent  Com.  179.  680;  7    T.  E.   112;  Kelly  v.   Small,  2 

1  Monroe  v.  Twistleton,  cited  in  Esp.  716;  Brown  v.  Wood,  121  Mass. 
Averson  v.  Lord  Kinnaird,  0  East,  192 ;  137  ;  Schoul.  Hus.  &  Wife,  §  83. 
Doker  v.  Hasler,  lly.  &  M.  198  ;  Stein  *  Sullivan  u.  Sullivan,  106  Mass.  474. 
V.  Bowman,  13  Pet.  223 ;  1  Greenl.  The  Massachusetts  rule  is  contrary  to 
Evid.  §  337.  See  also  Terry  v.  Bel-  that  of  New  York  and  Maine.  See  au- 
cher,  1   Bailey,  568  ;  State  v.  Jolly,  3  thorities  cited  in  this  case. 

Dev.  &  Bat.  110;  Crose  v.  Rutledge,  81  ^  Redgrave  v.  Redgrave,  38  Md.  93. 

111.  266 ;  Wood  v.  Shurtleff,  46  Vt.  525  ;  6  Marsh  v.  Marsh,  29  N.  J.  Eq.  396  ; 

Barnes  v.  Camack,  1  Barb.  392.     But  Finn  v.  Finn,  19  N.  Y.  Supr.  339  ;  Peo- 

see    Dickerman    v.    Graves,   6    Cush.  pie   v.  Houghton,   41  N.   Y.  Supr.  501. 

308.  But  see  State  v.  Bennett,  31  Iowa,  24. 

2  See  cases  cited  in  1  Greenl.  Evid.         "^  Goodrum  v.  State,  60  Ga.  509. 

§  334.  And  see  Turner  v.  Cook,  36  ^1  Greenl.  Evid.  §  3.39,  and  cases 
Ind.  129  ;  Richards  v.  Burden,  31  Iowa,  cited  ;  2  Stark.  Evid.  400  ;  Bull.  N.  P. 
305;  Rea  v.  Tucker,  51  111.  110;  Sue-  287  ;  Campbell  v.  Twemlow,  1  Price, 
cession  of  Wade,  21  La.  Ann.  343.  81.  So  as  to  the  wife  of  a  freedman. 
The  wife  is  not  competent  to  prove  an  Hampton  v.  State,  45  Ala.  82.  The  rule 
alibi  for  her  husband  in  a  criminal  of  exclusion  does  not  extend  to  a  mis- 
prosecution.  Miller  v.  State,  45  Ala.  tress  or  the  husband  of  one's  paramour. 
24.  Dennis   v.   Crittenden,   42  N.  Y.  542 ; 

79 


§  53  THE   DOMESTIC   RELATIONS,  [PAIIT   II. 

rule  is  evidently  to  treat  as  privileged  communications  all 
that  passes  between  persons  supposing  themselves  lavrfully 
married,  and  at  all  events  not  to  prejudice  the  rights  of  the 
innocent  party  to  an  invalid  marriage  ;  but  the  rule  has  not 
always  been  carried  to  such  an  extent.  Some  exceptions 
exist  to  the  rule,  founded  mainl}'  on  considerations  of  public 
policy.^ 

There  have  been  some  important  changes  introduced  into 
the  law  of  evidence  in  some  parts  of  this  countr}-  hy  statute  ; 
such  as  permitting  interested  persons  to  testify  in  their  own 
suits.  Where  the  old  doctrine  prevails,  the  exclusion  of  the 
husband,  by  reason  of  direct  interest,  operates  to  exclude  his 
wife  likewise.^  So  the  husband  cannot  be  a  witness  in  a  con- 
troversy respecting  his  wife's  separate  estate,  though  in  re- 
spect to  other  parties  concerned  be  might  be  competent.^ 
The  English  Evidence  Act  of  1853, 16  &  17  Vict.  c.  83  (which 
has  been  substantially  enacted  in  some  parts  of  this  country), 
renders  husbands  and  their  wives  competent  and  compellable 
witnesses  for  each  other,  except  in  criminal  cases  and  in  cases 
of  adultery  ;  but  neither  shall  be  compelled  to  disclose  com- 
munications made  during  marriage.*  On  the  whole,  the  pre- 
vailing tendency  of  late  years  in  both  England  and  America  is 
to  regard  domestic  confidence  or  the  bias  of  a  spouse  as  of  little 


Mann  v.    State,   44  Tex.  642 ;  Hill  v.  erty.     Musser  v.  Gardner,  66  Penn.  St. 

State,   41    Ga.    484  ;    Rickerstriker   v.  242 ;    Northern    Line    Packet    Co.   v. 

State,  31  Ark.  207  ;  State  v.  Brown,  28  Shearer,  61  111.  263  ;  Porter  v.  Allen,  54 

La.    Ann.   279.      See  further,   Schoul.  Ga.  623 ;  Wing  c.  Goodman,  75  111.  159. 

Hus.  &  Wife,  §  83.  As  where  the  husband   dealt  with  the 

1  2  Russ.  on  Crimes,  605,  606  ;  1  Bl.  wife's  separate  property  as  her  agent. 
Com.  443;  1  Greenl.  Evid.  §  343,  and  Chesley  v.  Chesley,  54  Mo.  347  ;  Menk 
cases  cited  in  note;  Schoul.  Hus.  &  i>.  Steinfort,  39  Wis.  370.  But  cf.  Robi- 
Wife,  §  84,  and  cases  cited.  son  v.  Robison,  44  Ala.  227. 

2  1  Greenl.  Evid.  §  341  ;  Ex  parte  4  gge  Ed.  note  to  10th  ed.  2  Kent 
Jones,  1  P.  Wms.  610;  and  cf.  Stat.  Com.  181  ;  Stapleton  v.  Croft,  10  E.  L. 
6  Geo.  IV.  c.  16,  §  37.  &  Eq.  455 ;  Barbat  v.  Allen,  ih.  596 ; 

3  1  Burr.  424,  per  Lord  Mansfield;  Alcock  v.  Alcock,  12  ib.  354;  Stater. 
12  Vin.  Abr.  Evidence  B.  And  see  Wilson,  30  N.J.  77  ;  Farrelli'.  Led  well, 
note  to  1  Greenl.  Evid.  §  341,  witli  au-  21  Wis.  182  ;  Peaslee  v.  McLoon,  16 
thorities  cited.  In  various  States  a  Gray,  488 ;  Metier  v.  Metier,  3  C.  E. 
spouse,  under  statute,  may  be  acompe-  Green,  270.  See  Schoul.  Hus.  &  Wife, 
tent  witness  to  a  greater  or  less  e.xtent  §  85  and  n.,  where  the  modern  cases 
with  reference  to  wife's  separate  prop-  are  collated. 

80 


CHAP.  III.]         wife's   debts   AND   CONTRACTS.  §  54 

consequence  compared  with  the  public  convenience  of  extend- 
ing tlie  means  of  ascertaining  the  truth  in  all  causes  ;  such 
facilities  being  increased,  it  is  believed,  by  hearing  whatever 
each  one  has  to  say,  and  then  making  due  allowance  for  cir- 
cumstances affecting  each  one's  credibility.  By  the  modern 
enlargement  of  the  wife's  separate  contract  and  property  rela- 
tions, moreover,  the  spouses  are  presented,  not  so  constantly 
as  partakers  of  one  another's  confidence,  but  rather  as  per- 
sons having  adverse  interests  to  maintain,  or  else  as  principal 
and  agent.^ 


CHAPTER   III. 


EFFECT   OF   COVERTUEE   UPON   WIFE  S   DEBTS   AND   CON- 
TRACTS. 

§  54.  General  Inequalities  of  Coverture  at  Common  Law.  — 
The  property  rights  of  married  women  are  restrained  at  the 
common  law.  The  husband  yields  to  his  wife  no  participa- 
tion whatever  in  his  own  property,  whether  acquired  before 
or  during  the  continuance  of  the  marriage  relation,  except  a 
certain  right  of  inheritance  to  his  goods  and  chattels,  of  which 
he  can  generally  deprive  her  by  his  will  and  testament,  and 
also  dower  in  his  real  estate,  which  is  her  only  substantial 

1  A  statute  providing  for  the  admis-  A  wife  cannot  testify  against  her 

sion  of  interested  parties  as  witnesses  husband  upon  his  trial  for  theft  of  her 

does  not  per  se  remove  the  disqualifica-  property.     Overton  v.  State,  43  Tex. 

tion  of  husband  and  wife.     Lucas  v.  616. 

Brooks,  18  Wall.  436 ;  Gibson  v.  Com-  Concerning  testimony  as  to  conver- 

monwealth,  87  Penn.  St.  253 ;  Schultz  sations  held  by  married  parties  when 

V.  State,  32  Ohio  St.  276 ;  Gee  v.  Scott,  they  were  alone,  the  rule  of  the  com- 

48  Tex.  510.  nion  law,  encouraging  their  confidence, 

If  one  marital  party  testifies  for  or  is  presumed  to  be   unchanged  unless 

against  the  other,  under  statute,  cross-  the  statute  is  positive  to  that  effect, 

examination  must  be  permitted,  even  if  Raynes   v.    Bennett,    114   Mass.   424; 

it  compels  the  testimony  to  the  opposite  Westerman  v.  Westerman,  25  Ohio  St. 

direction.  Ballentine  i'.  White,  77  Penn,  500;   Brown  i;.  Wood,  121  Mass.  137  ; 

St.  20;  Steinburg  v.  Meany,  53  Cal.  Wood  v.  Chetwood,  27  N.  J.  Eq.  311; 

425.  Stanford  v.  Murphy,  63  Ga.  410. 

6  81 


§  54  THE   DOMESTIC   RELATIONS.  [PART   II. 

privilege.  In  return  for  this,  she  parts  with  all  control,  for 
the  time  being,  over  her  own  property,  whensoever  and  how- 
soever obtained,  by  gift,  grant,  purchase,  devise,  or  inheri- 
tance, gives  him  outright  her  personal  property  in  possession, 
and  allows  him  to  appropriate  to  himself  those  outstanding 
rights  which  are  known  as  her  cJioses  in  action,  or  all  the  rest 
of  her  personal  property  ;  parts  with  the  usufruct  of  her  real 
estate,  creating  likewise  a  possible  encumbrance  upon  it  in  the 
shape  of  tenancy  by  the  curtesy  ;  and  finally  takes,  if  she  sur- 
vives him,  only  her  real  estate,  such  of  her  personal  property 
as  remains  undisposed  of  and  unapi^ropriated,  with  a  few 
articles  of  wearing  apparel  and  trinkets  called  paraphernalia. 
She  cannot  restrain  his  rights  by  will.  She  is  not  allowed  to 
administer  on  his  personal  estate  in  preference  to  his  own  kin- 
dred, though  the  whole  of  it  were  once  hers ;  while  he  can 
administer  on  her  estate  for  his  own  benefit,  and  exclude  her 
kindred  altogether,  even  from  participation  in  the  assets. 
Thus  unequal  are  the  property  rights  of  husband  and  wife  by 
the  strict  rule  of  coverture.  We  speak  not  here  of  recent 
statutory  benefits  conferred  upon  the  wife  ;  nor  of  that  relief 
which  equity  affords  in  permitting  property  to  be  held  to  the 
wife's  separate  use,  and  giving  her  a  provision  from  her  chases 
in  action,  when  the  husband  seeks  its  aid  in  appropriating 
them  to  his  own  use  ;  but  of  what  is  to  be  properly  termed 
the  common  law  of  husband  and  wife.^ 

Some  recompense  is  afforded  to  the  wife  for  the  loss  of 
her  fortune,  in  the  rule  that  her  husband  shall  pay  her  debts 
contracted  while  a  feme  sole ;  that  is,  unmarried.  And 
while  coverture  lasts  he  is  liable  for  all  just  debts  incurred  in 
her  support.  He  has  even  been  held  guilty  of  murder  in  the 
second  degree  when  he  has  suffered  her  to  die  for  want  of 
proper  supplies.^  The  wife  cannot  make  a  contract  so  as  to 
bind  herself ;  but  in  this,  and  other  cases  of  express  or  implied 
authority,  she  can  bind  her  husband,  and  so  secure  a  main- 
tenance.    That  which  cannot  be   enforced  by  the  wife  as  a 

1  See  1  Bl.  Com.  442-445,  and  notes,  -  Reg.   v.    Pluramer,   1   Car.   &  K. 

hy  Christian,  Hargrave,  and  others  ;   2     600. 
Kent  Com.  130-143  ;  and  chapters  infra. 

82 


CHAP.  III.]         wipe's   debts    AND   CONTRACTS.  §  56 

matter  of  obligation  is  often  attained  at  the  common  law  in 
some  indirect  way.^  Nor  can  the  wife  sue  and  be  sued  in  her 
own  right. 

So,  too,  the  husband  is  liable  civilly  for  the  frauds  and  in- 
juries of  the  wife,  committed  during  coverture  ;  being  sued 
either  alone  or  jointly  with  her,  in  accordance  with  the  legal 
presumption  of  coercion  in  such  cases.  And  he  must  respond 
in  damages,  whether  she  brought  him  a  fortune  by  marriage 
or  not.  But  as  we  have  seen,  this  rule  does  not  apply  to 
crimes,  except  that  the  law  shows  the  wife  a  certain  indul- 
gence where  a  similar  presumption  can  be  alleged  on  her 
behalf.  On  the  other  hand,  the  husband  takes  the  benefit  of 
such  injuries  as  she  may  suffer,  by  suing  with  her  and  appro- 
priating the  compensation  by  way  of  damages  to  himself.^ 

§  55.  Exception  vrhere  Wife  is  treated  as  Feme  Sole.  —  We 
may  add  that  the  wife  is  relieved  at  the  common  law  of  the 
disabilities  of  coverture,  and  placed  upon  the  footing  of  a 
feme  sole,  with  the  privilege  to  contract,  sue  and  be  sued,  on 
her  own  behalf,  in  one  instance,  namely,  where  her  husband 
has  abjured  the  realm  or  is  banished  ;  for  he  is  then  said  to  be 
dead  at  the  law.^  And  the  necessity  of  the  case  furnishes 
the  strongest  argument  for  this  exception.  Another  excep- 
tion early  prevailed  in  certain  parts  of  England  by  local  cus- 
tom, —  as  that  of  London,  —  where  the  wife  might  carry  on 
a  trade,  and  sue  and  be  sued  in  reference  thereto  as  though 
single.* 

§  56.  Husband's  Liability  for  Wife's  Antenuptial  Debts.  —  One 
of  the  immediate  effects  of  marriage  at  the  common  law  is  that 
the  husband  at  once  becomes  bound  to  pay  all  outstanding 
debts  of  his  wife,  —  her  debts  diini  sola,  as  they  are  called, — 
of  whatever  amount.     This  is  a  sort  of  recompense  he  makes 


1  See  1  Bl.  Com.  442 ;  2  Kent  Com.  cautioned  that   tlie   statement  of  the 
143-149.  common  law  in  this  chapter  is  a  state- 

2  I  Bl.  Com.  443;  2  Kent  Com.  149,  ment  of  doctrines  which  at  the  present 
150.  day  are   found    to   he   controlled   and 

3  1  Bl.  Com.  443 ;  2  Kent  Com.  154.  changed,  to  a  great  extent,  hy  modern 
See  Separation,  post.  equity  rules  and   legislation.     See  cs. 

*  1  Selw.  N.  P.  298  ;  Bing.  Inf.  2G1,  7-12,post. 
262.     The  modern  practitioner  is  here 

83 


§  56  THE   DOMESTIC   KELATIONS.  [PAET   II. 

for  taking  her  property  into  his  hands.  But  whether  she 
brings  him  a  fortune  or  not,  his  liability  is  not  affected.  She 
may  owe  large  sums  at  the  time  of  marriage  and  have  nothing 
to  offset  them.  She  may  have  studiously  concealed  the  exist- 
ence of  the  debts  from  her  afBanced  husband.  But  none  of 
these  considerations  can  avail  to  shield  him.  When  married, 
she  is  married  with  her  debts  as  well  as  her  fortunes.  As 
Blackstone  observes,  her  husband  must  be  considered  to  have 
"  adopted  her  and  her  circumstances  together."  ^  This  rule  is 
moreover  applied  without  discrimination  as  to  individuals. 
An  infant  who  marries  is  bound  equally  with  an  adult  hus- 
band.2  j^  second  husband  is  liable  for  the  debts  of  his  wife 
outstanding  at  the  close  of  her  widowhood,  whether  con- 
tracted prior  to  the  first  marriage,  or  while  living  separate 
from  her  first  husband,  and  upon  a  separate  maintenance,  or 
after  the  termination  of  her  first  coverture  and  subsequent  to 
the  second;^ 

On  the  other  hand,  the  husband  remains  liable  for  the  debts 
of  his  wife  dum  sola  only  so  long  as  coverture  lasts.  As  his 
liability  originated  in  the  marriage,  so  it  ceases  with  it.  Hence 
if  the  obligation  be  not  enforced  in  the  lifetime  of  the  wife,  the 
surviving  husband  retains  her  fortune  (if  any)  in  his  liands, 
and  cannot  be  charged  further  with  her  debts  either  at  law 
or  in  equity.*  The  wife's  chases  in  action  still  unreduced  to 
possession  at  the  time  of  her  death  may,  however,  be  reached 
by  her  creditors  where  he  has  received  them  as  her  adminis- 
trator, though  only  to  the  actual  amount  of  such  assets ;  so 
that  this  would  afford  them  but  partial  relief.'^  Nor  can  the 
husband's  estate  after  his  death  be  made  liable  for  the  wife's 
debts  contracted  while  sole.^  Not  even  the  parol  promise 
made  by  the  husband  during  coverture  to  pay  his  wife's  debts 

1  1  Bl.  Com.  443;  3  Mod.  18G;  2  *  2  Kent  Com.  144.  See  Ch.  Ca. 
Kent  Com.   143-146 ;    Macq.   Hus.   &    295,  cited  §  59,  post. 

Wife,  39-41 ;   Heard  v.  Stamford,  3  P.         ^  Heard  v.    Stamford,   3  P.   Wms. 

Wms.  409;  Cas.  temp.  Talb.  173.  409;  Cas.  temp.  Talb.  173;   Morrow  v. 

2  Roacli  n.  Quick,  9  Wend.  238;  Whitesides,  10  B.  Monr.  411;  Day  v. 
Butler  v.  Breck,  7  Met.  164.  Messick,  1  Houst.  328. 

3  1  T.  R.  5 ;  7  T.  K.  348  ;  Prescott  6  i  Camp.  189 ;  Curtton  v.  Moore,  2 
r.  Fisher,  22  III.  390 ;  Angel  v.  Felton,  Jones  Eq.  204. 

8  Johns.  149. 

84 


CHAP.  III.]         wife's    debts    AND    CONTRACTS.  §  57 

dum  sola  will  create  an  additional  liability  for  them  on  his 
part.^     The  injustice  of  the  rule  in  certain  cases  is  obvious.  ^ 

On  general  principles  the  husband  is  bound  for  the  debt  of 
his  infant  wife  while  sole  just  as  much  as  though  she  were  an 
adult,  though  only  to  the  same  extent  as  she  would  have 
been  bound.  Hence,  where  the  demand  is  for  necessaries 
furnished  her  while  an  infant,  the  husband,  after  marriage, 
becomes  bound  to  pay  it,  since  she  would  have  been  liable  if 
she  had  not  married.  And  the  infancy  of  the  husband  him- 
self cannot  be  pleaded  against  this  obligation.^ 

If  the  wife  survives  her  husband,  she  becomes  liable  once 
more  on  her  debts  while  sole.  And  this,  too,  though  the 
means  for  extinguishing  them  may  have  already  been  squan- 
dered by  her  husband  or  placed  beyond  her  reach.*  Here  is 
a  great  hardship.  Coverture,  therefore,  seems  to  operate 
here  as  a  temporary  disability,  and  not  so  as  to  utterly  merge 
the  wife's  identity.  The  husband  becomes  liable  by  mar- 
riage, not  as  the  debtor,  but  as  the  husband ;  the  remedy 
being  suspended,  or  rather  shifted,  during  coverture. 

§  57.  Wife's  Antenuptial  Debts ;  Subject  continued.  —  The 
liability  of  the  husband  for  his  wife's  debts  while  sole  is 
limited  strictly  to  legal  demands  ;  that  is,  to  such  as  she  was 
bound  to  pay  at  the  time  of  her  marriage.^  And  if  a  demand 
would  not  be  enforceable  against  her  remainincj  sole,  neither  is 
it  enforceable  against  her  husband.  But  the  promise  or  part- 
payment  of  the  wife  cannot  take  a  debt  out  of  tlie  statute  of 
limitations  as  against  her  husband,  nor  can  the  promise  or 
part-payment  of  the  husband  as  against  his  wife.  Nor  can 
their  admissions  charge  one  another.^  Their  rights  in  this 
respect  are  separately  regarded. 

All  actions  for  the  wife's  debts  while  sole  must  be  brought 

1  Cole  V.  Shurtleff,  41  Vt  .^ll.  6  Ross   v.   Winners,    1    Halst.   306  ; 

2  See  Schoul.  Hus.  &  Wife,  §  92.  Sheppard  v.  Starke,  3Munf.29;  Brown 
'  Cole  V.  Seeley,  25  Vt.  220  ;  Ander-     v.  Lasselle,    6   Blackf.    147 ;  ]Moore  v. 

son  V.  Smitli,  33  Md.  465;  Bonney  v.  Leseur,  18  Ala.  606 ;  Farrar  v.  Bessey, 

Reardin,  6  Bush,  34.  24  Vt.  89  ;  Parker  v.  Steed,  1  Lea,  206. 

*  Woodman  v.   Chapman,  1  Camp.  But  .see  Lord  Tenterden,  in  Humphreys 

N.  P.  189,  per  Lord  Ellenborough.  v.  Royce,   1   Mood.  &  Rob.  140,  as  to 

^  Cowley  y.  Robertson,  3  Camp.  438;  admissions   of   the   wife   allowable   in 

Caldwell  v.  Drake,  4  J.  J.  Marsh.  246.  evidence  after  her  death. 

85 


§  58  THE  DOMESTIC   RELATIONS.  [PART   II. 

against  husband  and  wife  jointly,  and  not  against  either 
separately ;  and  judgment  obtained  by  disregarding  this  rule 
will  be  reversed  on  error.^  The  object  is  to  retain  the  remedy 
in  hand  so  that  execution  may  be  taken  out  against  the 
proper  party  according  to  circumstances  ;  for,  if  the  husband 
should  die  pending  the  suit,  the  wife,  on  her  survivorship, 
would  become  liable.^  The  rule  as  laid  down  in  Eneland 
concerning  the  wife's  personal  liability  on  her  debts  dum  sola 
is  that  coverture  does  not  wholly  relieve  her  from  the  con- 
sequences of  judgment  for  the  time  being  ;  for  that  both  may 
be  taken  on  execution  ;  and  when  the  wife  is  taken,  she  shall 
not  be  discharged  unless  it  ajDpear  that  she  has  no  separate 
property  out  of  which  the  demand  can  be  satisfied.^  This 
rule  does  not  seem  to  have  been  recognized  with  such  strict- 
ness in  this  country.^  But  where  the  wife  after  marriage 
pays  a  portion  of  her  debt,  contracted  while  sole,  from  funds 
derived  from  her  separate  property,  it  is  said  that  the  hus- 
band will  be  bound  by  the  act,  unless  he  disaffirms  it  within 
a  reasonable  time.^ 

So  far  as  rights  of  third  parties  are  concerned,  the  liability  of 
the  husband  for  his  wife's  debts  dum  sola  cannot  be  affected  by 
any  antenuptial  contract  between  the  two  ;  ^  nor  of  course  by 
their  agreement  during  coverture.  The  special  contract  of  a 
husband  with  the  creditor,  relating  to  his  wife's  debt  dum  sola, 
furnishes  a  different  cause  of  action  to  the  creditor  from  that 
which  arises  out  of  the  debt  duyn  sola  taken  by  itself." 

§  58.  "Wife's  General  Disability  to  Contract.  —  In  respect  to 
her  disability  to  contract,  the  wife  may  be  considered,  as  Mr. 

1  1  Keb.  281 ;  Alleyn,  72  ;  Angel  v.  *  Mallory  v.  Vanderheyden,  3  Barb. 
Felton,  8   Johns.   149;    7  T.  R.  348;     Ch.  9 ;  s.  c.  1  Comst.  453. 

Gage  V.  Reed,  15  Johns.  403;  Gray  v.         &  Hall  v.  Eaton,  12  Vt.  510.    As  lo 

Thacker,4  Ala.  1-36;  Plainer  r.Patchin,  effect  of  husband's  bankruptcy  iipon 

19  Wis.  33.3.  the  wife's  debts  dum  sola,  see  Sehoul. 

2  As  to  judgment  and  scire  facias,  Hus.  &  Wife,  §  96. 

where  the  woman  dies  or  marries  after-  6  Harrison  v.  Trader,  27  Ark.  288. 

wards,  &c.,  see  Sehoul.  Hus.  &  Wife,  ^  Wilson  v.  Wilson,  30  Ohio  St.  3Go. 

§  96.  The   common  law  as  to   the  wife's 

3  Tidd  Pract.  9th  ed.  1026;  Sparkes  antenuptial  debts  is  changed  consider 
V.  Bell,  8  B.  &  C.  1;  Newton  v.  Roe,  7  ably  by  our  modern  legislation  See 
Man.  &  Gr.  329 ;  Evans  v.  Chester,  2  M.  post,  cs.  11,  12 

&  W.  847. 

86 


CHAP.  III.]         wife's   debts   AND    CONTRACTS.  §  58 

Bingham  has  remarked,  worse  off  at  the  common  law  than 
infants  ;  for  the  contracts  of  an  infant  are  for  the  most  part 
voidable  only,  while  those  of  married  women  are,  with  few 
exceptions,  absolutely  void.  But  the  disabilities  incident  to 
these  two  conditions  rest  upon  different  grounds  ;  for  the 
disabilities  attached  to  infancy  are  designed  as  a  protection 
for  the  inexperienced  against  the  fraudulent,  while  those 
incident  to  coverture  are  the  simple  consequence  of  that  sole 
or  paramount  authority  which  the  law  vests  in  the  husband.^ 
Common  sense  teaches  that  married  women  have  sufficient 
discretion  to  act  for  themselves,  and  stand  on  a  different  foot- 
ing from  young  children  ;  this  the  English  law  fully  recog- 
nizes, irrespective  of  equity  rules,  by  empowering  all  women 
to  contract  up  to  the  very  moment  of  their  marriage,  and 
from  the  time  when  coverture  ceases.  At  most  it  could  only 
be  said  that  a  woman,  wliile  living  in  the  married  state,  was 
peculiarly  subject  to  influence  from  the  other  sex,  which 
might  be  exerted  to  her  disadvantage. 

The  husband  may  make  in  his  own  right  such  contracts  as 
he  pleases,  as  well  during  coverture  as  before.  He  is  never 
presumed  to  act  under  the  wife's  influence.'-^  But  the  wife 
by  coverture  becomes  disqualified  and  legally  irresponsible  in 
this  respect,  except  in  the  single  instance  wliere  her  husband 
is  civiliter  mortuus,  as  we  have  already  stated ;  ^  and  in  cer- 
tain localities  where  the  separate  trade  custom  applied.'^  But 
otherwise  her  incapacity  at  the  common  law  is  total. 

To  illustrate  the  wife's  disability.  She  cannot  earn  money 
for  herself.^  She  cannot,  jointly  with  her  husband  or  alone, 
sign  or  indorse  a  promissory  note,  so  as  to  bind  herself ;  ^  nor 
execute  a  bond  or  otlier  instrument  under  seal  ; ''  nor  pur- 
chase on  her  own  credit ;  nor  agree  to  keep  a  money  deposit 

1  See  Bing.  Inf.  &  Cov.  181,  182,  6  Mason  v.  Morgan,  2  A.l.  &  El.  30; 
Am.  ed. ;  2  Kent  Com.  150;  post,  In-  Snider  i-.  Ridgeway,  49111.  522;  O'Dailj 
fancy.                                                               v.   Morris,    31    Ind.    Ill  ;    Dollner    i>. 

2  "City  Council  v.  Van  Roven,  2  Mc-  Snow,  16  Fla.  86  ;  Robertson  v.  Wil- 
Cord,  465.  burn,  1  Lea,   633 ;   Brown   v.  Orr,  29 

3  5«/jra,  §  55.  Cal.  120;    Tracy  v.  Keith,   11   Allen, 
*  lb.  214. 

6  Offley  V.  Clay,  2  Man.  &  Gr.  172 ;  '  Whitworth  v.  Carter,  43  Miss.  61  ; 

c.  5,  post.  Huntley  v.  Whitner,  77  N.  C.  392. 

87 


§  59  THE   DOMESTIC   EELATIONS.  [PAET   II. 

payable  on  demand  ;  nor  be  surety  for  another  ;i  nor  other- 
wise make  a  valid  contract.^  She  is  permitted,  as  we  shall 
hereafter  see,  to  pass  her  real  estate  by  joining  in  a  deed  with 
her  husband  ;  but  when  she  does  so  she  is  not  bound  by  her 
covenants,  nor  was  her  separate  conveyance  (except  by  some 
matter  of  record)  of  any  effect  whatsoever.^  Her  covenant 
in  a  mortgage  of  her  husband's  property,*  or  title  bond,  or 
executory  contract  to  convey  land,^  is  equally  ineffectual.  A 
sheriff's  sale  of  her  land  upon  her  judgment  note,  given  as 
security  for  her  husband,  may  be  set  aside  as  void.^  In  all 
these  cases  the  wife  is  considered  as  under  the  husband's 
dominion,  and  unable  to  act  for  herself.'  On  the  same  prin- 
ciple it  is  held  that  a  married  woman  cannot  bind  herself  by 
her  contract  to  convey  estate  which  is  devised  to  her  in  trust 
for  sale.^  The  executory  and  unacknowledged  contract  of  a 
married  woman,  being  void  as  a  contract,  cannot  be  supported 
as  against  her  on  the  ground  of  estoppel.^ 

§  59.  Wife's  Disability  to  Contract  extending  beyond  Cover- 
ture. —  So  far  is  this  doctrine  of  the  wife's  contract  disability 
carried,  that  the  agreement  of  a  widow,  after  her  husband's 
death,  to  pay  a  debt  which  she  had  contracted  during  cover- 
ture, and  which  consequently  was  not  binding  upon  herself, 

1  Swing  V.  Woodruff,  41   N.  J.   L.         *  Kitchell  v.  Mudgett,  37  Mich.  81. 
469;  Gosman  v.  Cruger,  G9  N.  Y.  87.  ^  Stidham  v.  Mattliews,29  Ark.  0-50; 

2  Avery  v.  Griffin,  L.  R.  6  Eq  600 ;  Oglesby  Coal  Co.  v.  Pasco,  7'J  111. 
Tobey  v.  Smith,  15  Gray,  535 ;  Gould-  164. 

ing  V.  Davidson,  28  Barb.  438  ;  Lee  v.  ^  Doyle  v.  Kelly,  75  111.  574. 
Lanahan,  58  Me.  478.  But  as  to  sepa-  "^  Marshall  v.  Rutton,  8  T.  E.  545  ; 
rate  estate  and  modern  legislation,  see  11  East,  301  ;  2  B.  &  P.  22(j ;  3  B.  & 
post,  cs.  10,  11.  Her  judgment  bond  is  C.  291;  Jackson  v.  Vanderheyden,  17 
void.  Schlosser's  Appeal,  58  Penn.  St.  Johns.  167;  Benjamin  v.  Benjamin,  15 
493.  Likewise  her  warrant  of  attorney  Conn.  347;  Ayer  v.  Warren,  47  Me. 
to  confess  judgment.  Swing  r.  Wood-  217  ;  Young  v.  Paul,  2  Stockt.  401  ; 
ruff,  41  N.J.  L.  469;  Shallcross  v.  Stillwell  v.  Adams,  29  Ark.  34(3;  Stock- 
Smith,  81  Penn.  St.  32.  ton  v.  Farley,  10  W.  Va.  171 ;  Savage 

3  2  Bl.  Com.  293,  351,364,  and  notes  v.  Davis,  18  Wis.  608.  Al iter,  as  to 
by  Chitty  and  others  ;  Robinson  v.  Rob-  modern  legislation,  &c.,  cs.  10, 11,  post. 
inson,  11  Bush,  174;  Ferguson  r.  Reed,  8  Avery  v.  Griffin,  L.  R.  6  Eq. 
45  Tex.  574;    Botsford  r.  Wilson,  75  606. 

111.  133  ;  2  Kent  Com.  160-154  ;  //-.  167,         ^  Wood  v.  Terry,  30  Ark.  385 ;  Og- 

168.     See  post,  ch.  6.     Rule  applied  to  lesby   Coal    Co.  i;.  Pasco,  79  111.  164. 

a  land  patent  signed  by  husband  and  But  cf.  Norton  v.  Nichols,   35  Mich, 

wife.     Shartzer  v.  Love,  49  Cal.  93.  148. 


CHAP.  III.]         wife's   debts   AND   CONTKACTS»  §  60 

but,  if  at  all,  upon  her  husband,  has  been  treated  as  void, 
on  the  ground  that  the  promise  was  without  consideration 
and  only  morally  binding.^  But  in  another  case  it  was  held 
a  sufficient  consideration  to  support  a  widow's  promissory 
note,  that  it  had  been  given  by  her,  out  of  respect  for  her  late 
husband's  memory,  to  secure  a  debt  due  by  him.^  As  a  rule, 
of  course,  the  widow  cannot  be  compelled  to  make  good  an 
engagement  or  fulfil  a  contract  which  she  entered  into  while 
under  the  disability  of  coverture.^ 

Lord  Nottingham,  in  a  case  mentioned  in  the  old  reports, 
once  refused  to  absolve  a  husband,  after  his  wife's  death, 
from  payment  for  goods  which  she  had  purchased  prior  to  the 
marriage,  but  never  paid  for,  there  being  proof  that  he  had 
actually  received  the  goods,  the  debt  being  antenuptial.  His 
lordship  declared  with  earnestness  that  he  would  change 
the  law  on  that  point.*  But  in  this  case  it  appears  that  the 
goods  did  not  actually  come  to  the  husband's  hands  until 
after  the  wife's  death.  And  the  authority  of  this  decision 
has  since  been  greatly  impaired.^  In  equity  the  creditors  of 
the  first  husband  may,  where  his  wife  was  administratrix, 
follow  the  assets  in  the  hands  of  a  second  husband,  although 
the  wife  be  dead  ;  and  at  law  during  her  life.*^ 

The  contract  of  a  married  woman,  being  void,  is  likewise 
unenforceable  against  her  after  divorce,  notwithstanding  her 
subsequent  promise,  when  once  more  sui  Juris;  for  such 
promise  is  without  consideration.'^  But  after  the  death  of  her 
spouse,  or  her  divorce  from  him,  her  promise,  founded  on  a 
new  consideration,  may  be  enforced  against  her. 

§  60.  Wife  binds  Husband  as  Agent.  —  But  although  the 
wife,  as  such,  has  no  power  to  make  a  contract,  she  is  allowed 
at  the  common  law  to  bind  her  husband  in  certain  cases  as 
his  agent.     Her  authority  may  be  general  or  special,  express 

1  Meyer  v.  Hawortli,  8  Ad.  &  El.  &  lb. ;  1  Eq.  Cas.  Abr.  60. 

467  ;  Waul  v.  Kirkman,  25  Miss.  609  ;         6  Cha.  Ca.  80  ;  1  Vern.  309  ;  2  Vern. 

Lennox  v.  Eklred,  1  Thomp.  &  C.  140.  61,  118;  1  Eq.  Cas.  Abr.  60,  61 ;  Cro. 

2  1  Cr.  &  J.  2.31 ;  Tyr.  84.  See  also  Car.  603 ;  1  Roll.  Abr.  85.  See  Ma- 
Nelson  V.  Searle,  3  Jur.  290.  gruder  v.  Darnall,  6  Gill,  269. 

3  Ross  V.  Sing:leton,  1  Del.  Ch.  149.  ^  Putnam    v.    Tennyson,    50    Ind. 
*  Clia.  Ca.  295.                                        456. 

89 


§  61  THE   DOMESTIC   RELATIONS.  [PART   11. 

or  implied.  Blackstone  says  that  the  power  of  the  wife  to  act 
as  attorney  for  her  husband  implies  no  separation  from,  but 
is  rather  a  representation  of,  her  lord.^  Whenever  the  hus- 
band expressly  empowers  his  wife  to  make  a  contract  for 
him,  he  will  be  bound  as  in  the  case  of  any  other  principal. 
And  he  may  bind  himself  in  like  manner  for  any  unauthorized 
contract  proceeding  from  his  wife  as  agent,  by  subsequent 
conduct  on  his  part  amounting  to  ratification.  But  greater 
difficulty  arises  in  determining  his  liability  upon  contracts 
where  the  authority  is  not  express  but  only  implied.  How  far 
does  the  law  go  in  presuming  against  the  husband,  and  what 
are  the  proper  limits  of  an  implied  authority  in  the  wife  to 
bind  him  by  her  contracts  ?  This  is  an  important  inquiry 
which  we  shall  presently  consider. 

But  let  us  premise,  as  a  suitable  conclusion  from  the  pre- 
ceding sections,  that  the  husband  may  be  bound  in  one  of 
two  ways,  either  upon  his  own  contract  or  upon  that  made 
by  the  wife  as  his  agent;  and  hence  he  may  be  held  liable 
because  the  debt  or  obligation  was  his  own,  or  because  his 
wife  represented  him.  The  natural  effect  of  his  joining  with 
her  in  executing  a  contract  or  instrument  would  be  to  render 
it  his  individual  obligation,  since  he  is  sui  juris  ;^  while  if 
she  executed  alone  and  without  a  suitable  agency  on  his 
behalf,  the  obligation  would  be  altogether  void. 

§  61.  Wife's  Necessaries ;  Foundation  of  Husband's  Obliga- 
tion.—  On  the  important  principle  of  the  wife's  agency  rests 
the  liability  of  the  husband,  at  common  law,  in  contracts 
made  by  the  wife  for  necessaries.  It  is  a  clear  obligation 
which  rests  upon  every  husband  to  support  his  wife  ;  that  is, 
to  supply  her  with  necessaries  suitable  to  her  situation  and 
his  own  circumstances  and  condition  in  life.  Notwithstand- 
ing a  man  married  unwillingly,  —  as,  for  instance,  to  avoid  a 
prosecution  for  seduction  or  bastardy,  —  he  is  bound  to  sup- 
port her.'5  But  though  this  obligation  appears  to  rest  on  the 
foundation  of  natural  justice,  the  comnion  law  assigns,  as  the 
true   legal  reason,  that   she   may  not  become   a  burden  to 

1  1  Bl.  Com.  442;  2  Man.  &  Gr.  172;  2  Dresel  v.  Jordan,  104  Mass.  497. 

Mizen  /•.  Pick,  3  M.  &  W.  481.  3  state  v.  Ransell,  41  Conn.  433. 

90 


CHAP.  III.]         wipe's   debts   AND   CONTRACTS.  §  61 

the  community.  So  long  as  that  calamity  is  averted,  the  wife 
has  no  direct  claim  upon  her  husband  under  any  circum- 
stances whatever ;  for  even  in  the  case  of  positive  starvation 
she  can  only  come  upon  the  parish  for  relief;  in  which  case 
the  parish  authorities  will  insist  that  the  husband  shall  pro- 
vide for  her  to  the  extent  of  sustaining  life.^  If  a  husband 
fail  in  this  respect,  so  that  liis  wife  becomes  chargeable  to  any 
parish,  the  statute  4  Geo.  IV.  c.  83,  §  3,  says  that  "■  he  shall 
be  deemed  an  idle  and  disorderly  person,  and  shall  be  punish- 
able with  imprisonment  and  hard  labor."  ^  And  this  obliga- 
tion extends  to  the  whole  family,  with  such  modifications  as 
will  be  more  properl}'  noticed  in  treating  of  parent  and  child. 
If  a  man  marry  a  widow  he  is  not  bound  to  maintain  her 
children  ;  unless  he  holds  them  out  to  the  world  as  part  of 
his  own  family .3  But  by  the  statute  4  &  5  Will.  IV.  c.  76, 
§  57,  the  husband  is  required  to  maintain,  as  part  of  his 
family,  any  child  or  children,  till  the  age  of  sixteen,  legitimate 
or  illegitimate,  that  his  wife  may  have  at  the  time  of  entering 
into  the  contract.^ 

To  enforce  these  marital  obligations  the  law  takes  a  cir- 
cuitous course  ;  and  the  wife  may  secure  herself  from  want 
against  a  cruel  and  miserly  husband,  of  ample  means  to  sup- 
port her,  by  pledging  his  credit  and  making  such  purchases 
as  are  needful,  on  the  strength  of  an  implied  authority  for 
that  purpose.  Here,  all  other  things  being  equal,  it  is  pre- 
sumed that  she  was  her  husband's  agent ;  and  no  direct 
permission  need  be  shown.  Indeed,  wherever  the  facts  are 
clear  that  those  articles  were  actually  needed,  and  that  the 
husband  failed  to  supply  them,  this  presumption  is  carried  so 
far  as  to  control  even  the  express  orders  of  the  husband  him- 
self. The  articles  for  which  a  wife  is  allowed  to  pledge  her 
husband's  credit  as  his  presumed  agent  are  designated  at 
common  law  as  necessaries. 

The  wife's  necessaries  are  such  articles  as  the  law  deems 

1  Rex  V.  riintan,  1  B.  &  Ad.  227 ;  *  4  T.  K.  118 .  Cooper  v.  Martin,  4 
7  Ad.  &  El.  819.  East,  76  ;  3  Esp.  N.  P.  1  ;  Hall  /•.  Weir, 

2  See  Macphers.  Lif.  42,  43.  1    Allen,    261.     See    post,    Parent    & 
8  Attridge  v.  Billings,  57  111.  489.  Child. 

91 


§  61  THE  DOMESTIC   RELATIONS.  [PAKT  II. 

essential  to  her  health  and  comfort ;  chiefly  food,  drink,  lodg- 
ing, fuel,  washing,  clothing,  and  medical  attendance.  They 
are  to  be  determined,  both  in  kind  and  amount,  by  the  means 
and  social  position  of  the  married  pair,  and  must  therefore 
vary  greatly  among  different  grades  and  at  different  stages  of 
society.^  Thus  a  large  milliner's  bill  might  not  be  deemed 
necessaries  for  the  wife  of  a  laborer,  while  a  wealthy  merchant 
would  be  bound  to  pay  it.  So,  too,  necessaries  to-day  are 
not  what  they  were  fifty  years  ago.  Nor  is  the  ordinary  test 
to  be  found  in  the  real  situation  and  means  of  the  married 
parties  ;  for  this  a  tradesman  cannot  be  expected  to  investi- 
gate ;  but  in  their  apparent  situation,  the  style  they  assume, 
and  the  establishment  they  maintain  before  the  world;  which 
every  husband  is  supposed  to  regulate  with  sufficient  pru- 
dence.^ Articles,  too,  may  be  of  a  kind  which  the  law  pro- 
nounces necessaries,  and  j^et  a  wife  may  be  so  well  supplied 
as  not  to  need  the  particular  articles  in  question,  — a  distinc- 
tion of  some  consequence.  The  decisions  in  the  books,  relat- 
ing to  necessaries,  are  therefore  somewhat  confusing,  as  might 
be  expected  ;  the  more  so  since  the  dividing  line  between 
law  and  fact,  in  such  cases,  is  not  marked  with  distinctness. 
Sometimes  the  court  decides  whether  articles  are  necessary, 
sometimes  a  jury.  The  ordinary  rule  is  that  the  court  shall 
decide  whether  certain  articles  are  to  be  classed  as  neces- 
saries ;  while  the  jury  may  determine  the  question  of  amount, 
and  apply  this  classification  to  the  facts ;  ^  but  this  rule, 
though  seemingly  precise,  is  found  difficult  in  its  practical 
application.^ 

1  2  Bright  Plus.  &  Wife,  7,  8 ;  Sel.  lowing  articles  classed  as   necessaries 

N.  P.  260;  6Car.  &  P.  419;  Cro.  Jac.  for    the     wife:    Board    and    lodging. 

257,  258;  n.  to  2  Kent  Com.  10th  ed.  Medicines,  medical  attendance,  and  rea- 

146;  ib.  138,  139;  1  Bl.  Com.  442.  sonable  expenses  during  illness.     Har- 

~  Waithman  v.  Wakefield,  1  Camp,  ris  v.  Lee,  1  P.  Wms.  4o8 ;  Mayliew  v. 

120.  Thayer,  8  Gray,  172  ;  Cothran  v.  Lee, 

3  Renaux  v.  Teakle,  20  E.  L.  &  Eq.  24  Ala.  380;  Webber  v.  Spannhake,  2 

345 ;  1  Pars.  Contr.  241 ;  Hall  I,-.  Weir,  Redf.    (N.   Y.)    258.     Furniture   of   a 

1   Allen,   261 ;    Parke  v.   Kleeber,   37  house  for  a  wife  to  wliom  the  court  liad 

Penn.  St.  251 ;  Raynes  v.  Bennett,  114  decreed  £380  a  j'earas  alimony.    Hunt 

Mass.  424 ;  Phillipson  v.  Hayter,  L.  R.  r    De  Blaquiere,  5  Bing.  650.     Silver 

6  C.  P.  38.  fringes  to  a  petticoat  and  side  saddle 

*  Among  the  cases  we  find  the  fol-  (value  £94)  furnished  to  the  wife  of  a 

92 


CHAP.  III.]         wife's   debts   AND   CONTRACTS. 


62 


§  62.    Wife's  Necessaries  ;  Living  together  or  separate.  —  The 
husband's  liability  for  necessaries  may  arise  in  two  distinct 


serjeant-at-law.  Skin.  349.  "Watches 
and  jewelry  such  as  befits  the  style  of 
dress  which  the  husband  sanctions, 
especially  if  not  wholly  ornamental. 
Eaynes  v.  Bennett,  11-t  Mass.  424. 
Reasonable  legal  expenses  incurred  by 
a  wife  who  had  been  deserted  by  her 
husband,  preliminary  and  incidental  to 
a  suit  for  restitution  of  her  conjugal 
rights,  and  in  obtaining  professional 
advice  as  to  the  proper  method  of  deal- 
ing with  tradesmen  who  were  pressing 
their  bills.  Wilson  v.  Ford,  L.  R.  3 
Ex.  63.  Reasonable  legal  expenses  in 
defence  of  a  prosecution  instituted 
against  a  wife  by  her  husband  (Warner 
V.  Heiden,  28  Wis.  517),  and  even,  in  a 
just  cause,  for  prosecuting  him.  Shep- 
herd V.  Mackoul,  3  Camp.  326  ;  Morris 
V.  Palmer,  39  N.  H.  128.  A  horse 
worth  §45  for  the  invalid  wife  of  a 
miller  earning  $30  per  month,  in  order 
that  she  might  take  exercise  as  advised 
hy  a  physician  ;  the  question  of  suit- 
ableness, however,  being  left  to  the 
jury.  Cornelia  v.  Ellis,  11  111.  584. 
The  cost  of  divorce  proceedings,  in- 
cluding fees  of  a  proctor,  where  the 
wife  had  reasonable  ground  for  insti- 
tuting them,  but  not  otlierwise.  Brown 
V.  Ackroyd,  34  E.  L.  &  Eq.  214 ;  Porter 
V,  Briggs,  38  Iowa,  166.  But  cf.  this 
note,  post.  A  set  of  false  teeth,  and  rea- 
sonable dentistry.  Freeman  v.  Holmes, 
62  Ga.  556  ;  Oilman  v.  Andrus,  28  Vt. 
241.  Household  supplies  reasonable 
and  proper  for  tlie  ordinary  use  of  a 
family,  although  the  wife  receives  the 
earnings  of  two  daughters  living  with 
her.  Hall  v.  Weir,  1  Allen,  261.  Per- 
haps a  piano.  Parke  v.  Kleeber,  37  Penn. 
St.  251.  But  see  Chappell  v.  Nunn,  41 
L.  T.  287. 

But,  on  the  other  hand,  the  follow- 
ing articles  have  been  held  not  to  be 
necessaries  :  Articles  of  jewelry  for  the 
wife  of  a  special  pleader.  Montague  v. 
Benedict,  3  B.  &  C.  631.  A  deed  of 
separation.    Ladd  v.  Lynn,  2  M.  &  W. 


265.  The  expense  of  an  indictment  by 
the  wife  for  assault.  Grindell  v.  God- 
mond,  5  Ad.  &  El.  755.  Especially  if 
the  grounds  for  instituting  criminal 
proceedings  did  not  appear  reasonable. 
Smith  V.  Davis,  45  N.  H.  566.  Counsel 
fees  in  a  suit  for  divorce  or  to  enforce 
a  marriage  settlement,  whether  the  wife 
be  plaintiff  or  defendant.  Pearson  v. 
Darrington,  32  Ala.  227  ;  Thompson  v. 
Thompson,  3  Head,  527  ;  Schoul.  Hus. 
&  Wife,  §  105 ;  Dow  v.  Eyster,  79  111. 
254 ;  Whipple  r.  Giles,  55  N.  II.  139. 
Legal  expenses  and  fees  are  sometimes 
chargeable  against  a  husband,  in  cases 
of  this  sort,  because  the  statute  says 
so.  Thomas  r.  Thomas,  7  Bush,  665; 
Warner  v.  Heiden,  28  Wis.  517 ;  Glenn 
V.  Hill,  50  Ga.  94. 

Decisions  differ;  but  the  weight  of 
authority  is  that  an  action  at  law  for 
his  fees  cannot  be  maintained  by  a  soli- 
citor who  prosecutes  or  defends  on  the 
wife's  behalfagainst  her  husband.  Fees 
and  retainers  for  more  solicitors  than 
were  needful  cannot  be  allowed.  Pas- 
sage tickets  in  general  to  enable  the  wife 
to  travel,  except  perhaps  for  a  clearly 
needful  purpose.  Knox  v.  Bushell,  3 
C.  B.  N.  s.  334.  Medical  attendance 
rendered,  without  the  husband's  as- 
sent, by  a  quack  doctor.  Wood  v. 
O'Kelly,  8  Cush.  406.  Though  when 
a  husband  disputes  a  bill  for  medical 
attendance  on  the  ground  of  malprac- 
tice, or  an  unnecessary  surgical  oper- 
ation, the  burden  is  on  him  to  show  it. 
M'Clallan  v.  Adams,  19  Pick.  333. 
"  Religious  instruction,"  or  the  rent  of 
a  church  pew.  St.  John's  Parish  v. 
Bronson,  40  Conn.  75.  Articles,  in 
short,  which  are  extravagant  and  alto- 
gether beyond  the  husband's  circum- 
stances and  degree  in  life.  Canc}^  v. 
Patton,  2  Ashm.  140.  See  Phillipson 
V.  Hayter,  L.  R.  6  C.  P.  38. 

Money  lent  the  wife  for  the  pur- 
chase of  necessaries,  or  for  other  pur- 
poses however  suitable,  is  not  classed 

93 


§  63  THE   DOMESTIC   RELATIONS.  [PAET  II. 

classes  of  cases  :  first,  where  the  wife  lives  with  him ;  second,^ 
where  slie  lives  separate  from  him.  And  where  the  wife 
lives  with  him,  the  husband's  assent  to  her  contract  for  neces- 
saries is  inferred  from  circumstances  which  show  authoiity 
actually  conferred,  or  else  the  law  supplies  an  assent  for  her 
benefit  where  he  has  improperly  refused  or  neglected  to  pro- 
vide for  her  wants.  Where  they  live  apart,  separation  is 
either  voluntary  or  involuntary.  Let  us  consider  these  two 
classes  of  cases  separately. 

§  63.  "Wife's  Necessaries  where  Spouses  live  together.  — 
First,  then,  as  to  a  husband's  liability  where  his  wife  lives 
with  him.  Here  we  are  met  at  the  outset  by  the  broad  pre- 
sumption of  assent  which  cohabitation  of  itself  furnishes. 
The  simple  circumstance  that  husband  and  wife  are  living 
together  has  been  generally  held  sufficient,  when  nothing  to 
the  contrary  intervenes,  to  raise  a  presumption  that  the  wife 
is  rightfully  making  such  purchases  of  necessaries  as  she  may 
deem  proper.^  Whoever  then  supplies  her  in  good  faith,  as 
the  law  has  usually  been  understood,  need  inquire  no  further, 
but  may  send  his  bill  to  her  husband.  This  rule  is  a  fair  one  ; 
for  it  is  not  to  be  supposed  that  a  husband  will  go  in  person 
to  buy  eveiy  little  article  of  dress  or  household  provision 
which  may  be  needful  for  his  family.  As  Lord  Abinger  ob- 
served, a  wife  would  be  of  little  use  to  her  husband  in  their 
domestic  arrangements,  if  his  interference  was  always  to  be 
deemed  necessary.^  Accordingly,  if  an  action  be  brought 
against  the  husband  for  the  price  of  goods  furnished  under 

with  necessaries  at  the  common  law  ;  his  loan  is  properly  applierl.  Harris  v. 
probably  because  husbands  do  not  often  Lee,  1  P.  Wms.  482;  Walker  v.  Simp- 
confer  an  authority  liable  so  easily  to  son,  7  W.  &  S.  83 ;  Kenyon  v.  Farris, 
abuse.  Walker  v.  Simpson,  7  W.  &  S.  47  Conn.  510;  Deare  ?'.  Soutten,  L.  R. 
83;  Stone  v.  McXair,  7  Taunt.  432;  9  Eq.  15L  See  Schullhofer  i'.  Metzger, 
Stevenson  v.  Hardy,  3  Wils.  388  ;  Knox  7  Rob.  (N.  Y.)  576. 
V.  Bushell,  3  C.  B.  n.  s.  3.34.  But  equity  i  2  Bright  Hus.  &  Wife,  G,  7;  Bull, 
takes  a  view  more  consonant  to  the  N.  P.  134;  Salk.  113;  7  Car.  &  P.  756. 
wants  of  a  distressed  wife,  and  allows  See  also  1  Ventr.  42;  2  Vent.  155; 
the  person  lending  tlie  money  to  stand  Montague  v.  Benedict.  3  B.  &  C.  631  ; 
in  the  stead  of  tlie  tradesman,  and  to  Manby  v.  Scott,  1  Mod.  124 ;  1  Sid. 
recover  if  the  money  was  actually  109;  1  Roll.  Abr.  351,  pi.  5 ;  Freestone 
used  for  necessaries ;  thus  leaving  him  v.  Butcher,  9  Car.  &  P.  643. 
bound,  in  other  words,  only  to  see  that         -  Emmett  v.  Norton,  8  Car.  &  P.  506. 

94 


CHAP.  III.]         wife's   debts   AND   CONTRACTS.  §  63 

such  circumstances,  it  must  be  taken  prima  facie  that  these 
goods  were  supplied  by  his  authorit}",  and  he  must  show  that 
he  is  not  responsible.^ 

The  wife's  contract  for  necessaries  will  bind  the  husband 
to  a  still  greater  extent  if  the  evidence  warrant  the  inference 
that  a  more  extensive  authority  has  in  fact  been  given.^  Thus 
the  presumption  which  cohabitation  furnishes  is  strengthened 
by  proof  that  the  wife  has  been  permitted  by  the  husband  to 
purchase  other  articles  of  the  same  sort  for  the  use  of  the 
household.^  But  it  must  be  ordinarily  things  for  what  may 
be  termed  the  domestic  department,  to  wliich  the  wife's 
authority  to  bind  her  husband  is  restricted.^ 

But  we  must  observe  that  the  question  is,  after  all,  one  of 
evidence  ;  it  turns  upon  the  question  of  authority  from  the 
husband ;  and  this  presumption  in  the  wife's  favor  may  be 
rebutted  by  contrary  testimony  on  the  husband's  behalf.^ 
Lord  Holt  says :  "  His  assent  shall  be  presumed  to  all  neces- 
sary contracts,  upon  the  account  of  cohabiting,  unless  the  con- 
trary appear.""  ^  Not  only  is  the  husband  permitted  to  show 
that  articles  in  controversy  are  not  such  as  can  be  considered 
necessaries,  but  he  may  show  that  he  supplied  his  wife  himself 
or  by  other  agents,  or  that  he  gave  her  ready  money  to  make 
the  purchase.^  This  is  on  the  principle  that  the  husband  has 
the  right  to  decide  from  whom  and  from  what  place  the 

1  Clifford  V.  Laton,  3  Car.  &  P.  15,  187.  The  position  assumed  by  Mr. 
per  Lord  Tenterden.  But  see  post,  Story,  in  liis  work  on  Contracts,  that, 
p.  97  ;  Debenham  v.  Mellon,  L.  R.  5  Q.  as  to  tlie  wife's  necessaries,  "  tlie  law 
B.  D.  394.  raises  an  uncontrollable  presumption  of 

2  2  Bright  Hus.  &  Wife,  9  ;  cases  assent  on  the  part  of  the  husband,"  is 
cited  in  note  to  Filmer  i'.  Lynn,  4  Nev.  therefore  incorrect.  Story  Contr.  2d 
&  Man.  -559  ;  M'George  v.  Egan,  7  Scott  ed.  §  97.  "  Wliat  the  law  docs  infer  is. 
Cases,  112.  that  the  wife  has  autliority  to  contract 

3  1  Sid.  128  ;  Jewsbury  v.  Newbold,  for  things  that  are  really  necessary  and 
40  E.  L.  &  Eq.  518.  suitable  to  the  style  in  wliich  the  hus- 

*  Phillipson  v.  Hayter,  L.  R.  6  C.  P.  band  chooses  to  live,  in  so  far  as  the 
38.  articles  fail  fairly  within  the  domestic 

*  Lane  v.  Ironmonger,  13  M.  &  W.  department,  which  is  ordinarily  con- 
368.  fided  to  the  management  of  the  wife." 

6  Etherington    v.    Parrott,   1    Salk.  Willes,  J.,  in  Phillipson  v.  Hayter,  L.  R. 

118.     See  also,  to  the  same  effect,  Mc-  6  C.  P.  38.     And  see  Bovill,  C.  J.,  ib., 

Cutchen  v.  McGahay,  11  Johns.  281 ;  to  the  same  effect. 
Montague  v.  Benedict,  3  B.  &  C.  631 ;  -1   Sid.   109 ;   Etherington  v.  Par- 

and  note  by  Am    editor  to  Bing.  Inf.  rott,  2  Ld.  Raym.  lOOG. 

95 


§  63  THE   DOMESTIC    RELATIONS.  [PAET   U. 

necessaries  shall  come,  and  that,  so  long  as  he  has  provided 
necessaries  in  some  way,  his  marital  obligation  is  discharged, 
whatever  may  be  the  method  he  chooses  to  adopt.  Accord- 
ingly in  the  class  of  cases  which  we  are  now  considering, 
namely,  where  the  spouses  dwell  together,  so  long  as  the 
husband  is  willing  to  provide  necessaries  at  his  own  home, 
he  is  not  liable  to  provide  them  elsewhere.^  In  general, 
while  the  spouses  live  together,  a  husband  who  supplies  his 
wife  with  necessaries  suitable  to  her  position  and  his  own 
is  not  liable  to  others  for  debts  contracted  by  her  on  such 
an  account  without  his  previous  authority  or  subsequent 
sanction.^ 

As  a  rule,  a  husband  who  furnishes  his  wife  and  family 
with  necessaries,  in  any  reasonable  manner,  has  the  right  to 
prohibit  particular  persons  from  trusting  or  dealing  with  her 
on  his  account.  Notice  to  this  effect,  properly  given,  will 
be  effectual  as  against  any  presumption  which  cohabitation 
raises. 3  And  notice  given  to  a  tradesman's  servant  has  been 
held  sufficient  notice  to  the  master.  But  notice  given  in  the 
newspapers  not  to  trust  a  wife  is  held  to  be  of  no  effect 
against  such  as  have  not  had  actual  notice.*  Nor  is  a  suc- 
cessful defence  against  one  bill  sufficient  notice  of  prohibition 
against  subsequent  bills.^  In  order  to  bind  the  husband  for 
goods  furnished  after  notice  to  cease  furnishing,  the  seller 
must  show  not  only  that  the  articles  he  furnishes  are  necessa- 
ries, but  that  the  husband  failed  to  supply  them  properly.^ 

Generally,  in  such  cases,  it  has  been  said  the  burden  of 
proof  is  upon  the  husband.'^  Such  a  statement,  however, 
must  be  taken  with  caution.  Cohabitation  furnishes,  as  we 
have  seen,  a  presumption  of  authority  ;  but  the  latest  English 
decisions  go  very  far  toward  annihilating  that  presumption 
by  insisting  that  the  question  of  the  wife's  express  or  implied 
authority  is  purely  one  of  fact  according  to  the  circumstances 
of  each  case,  where   the   spouses   live   together.     And   the 

1  Morgan  v.  Hughes,  20  Tex.  Ul ;  *  Walker  v.  Laighton,  11  Fost. 
Jolly  V.  Eees,  15  C.  B.  n.  s.  628.  (X.  H.)  111. 

2  Seaton  v.  Benedict,  5  Bing.  28.  5  Qgden  v.  Prentice,  3-3  Barb.  160. 

3  McCutchen  v.  McGahay,  11  Johns.  ^  B^rr  c.  Armstrong,  5G  Mo.  577. 
281 ;  Keller  v.  Phillips,  39  N.  Y.  3-31.  ^  Tebbets  v.  Hapgood,  U  N.  H  420. 

96 


CHAP.  III.]         wife's   debts   AND    CONTRACTS.  §  64 

English  court  of  appeals  for  such  cases  ^  has  lately  confirmed 
a  lower  tribunal,  ^  as  though  to  dispense  very  considerably 
with  the  necessity  of  notice  to  tradesmen  on  the  part  of  a 
husband  Avho  means  to  supply  his  wife  properly,  and  at  the 
same  time  prevent  her  from  pledging  his  credit.  The  point 
decided,  however,  affects  only  tradesmen  and  others  who 
have  had  no  previous  dealings  with  the  wife,  to  which  the 
husband's  assent  was  given. ^ 

§  64.  Wife's  Necessaries,  where  Spouses  live  together ;  Same 
Subject  continued.  —  Another  point,  as  we  have  already  sug- 
gested, is  available  to  the  person  who  has  furnished  necessa- 
ries on  the  general  principles  of  agenc}'" ;  namely,  that  a 
husband's  subsequent  ratification  is  as  good  as  a  previous 
authority.  So,  then,  if  it  can  be  shown  that  the  husband 
knew  his  wife  had  ordered  certain  necessaries,  and  yet  failed 
to  rescind  the  purchase  ;  or  if  there  be  proof  that  he  knew 
she  wore  the  articles  and  yet  expressed  no  disapprobation ; 
the  law  presumes  approval  of  her  contract  and  binds  him.* 
To  this  principle,  perhaps,  may  be  referred  the  rule  which  Mr. 
Roper  further  states  (without,  however,  citing  any  authori- 
ties), that  the  husband  is  liable  whenever  the  goods  pur- 
chased by  his  wife  come  to  her  or  his  use  with  his  knowledge 
and  permission,  or  when  he  allows  her  to  retain  and  enjoy 
them ;  in  other  words,  that  a  legal  liability  becomes  fixed 
from  the  fact  that  the  husband  and  his  household  take  the 
benefit  of  the  purchase.^  But  the  mere  fact  that  a  husband 
sees  his  wife  wearing  articles  purchased  without  authority 

1  Debenham  r.  Mellon,  L.  R.  5  Q.  B.  Moo.  &  P.  74;  Parke,  B.,  in  Lane  v. 
D.  394.  Doubt  is  thrown  by  this  deci-  Ironmonger,  13  M.  &  W.  368 ;  Day 
sion  upon  Johnston  v.  Sumner,  3  H.  &  v.  Burnham,  36  Vt.  37 ;  Woodward  v. 
N.  261.  Barnes,  43  Vt.  330;  Ogden  v.  Prentice, 

2  Jolly  V.  Rees,  15  C.  B.  n.  s.  628.  33  Barb.  160. 

3  Debenham  v.  Mellon,  L.  R.  5  Q.  B.  ^2  Rop.  Hus.  &  Wife,  112 ;  2  Bright 
D.  394.  The  opinion  of  Bramwell,  L.  J.,  Hus.  &  Wife,  9.  Mr.  Macqueen  (Hus. 
in  this  case  is  worthy  of  careful  pern-  &  Wife,  note  to  p.  132)  points  out  this 
sal.  The  same  principle  is  confirmed  statement  of  Mr.  Roper  with  a  doubt 
in  this  country  by  Woodward  v.  Barnes,  as  to  the  authority,  although  he  admits 
43  Vt.  330.  But  of.  Cothran  r.  Lee,  the  justice  of  such  a  rule,  on  the  civil- 
24  Ala.  380;  Schoul.  Hus.  &  Wife,  law  maxim  that  "  no  one  should  enrich 
§  107.  himself  at  another's  loss." 

*  Seaton  v.  Benedict,  5  Bing.  28;  2 

7  97 


§  64  THE   DOMESTIC   RELATIONS.  [PART   II. 

will  not  charge  him  ;  the  question  is  one  of  approval  or  dis- 
approval, assent  or  dissent,  and  the  presumption  against  him 
ma}'  be  rebutted. ^ 

The  husband's  dissent  to  his  wife's  purchase  of  necessaries 
should  be  expressed  in  an  effectual  and  suitable  manner. 
Mere  objection  on  his  part  is  insufficient.  Thus  a  bill  for 
medical  attendmce  must  be  paid  by  him,  even  though  he 
objected  to  the  visits,  as  long  as  he  was  present,  and  gave  no 
notice  to  the  physician  that  the  latter  must  look  elsewhere  for 
payment.^  And  private  arrangements  between  husband  and 
wife  as  to  the  method  of  payment  cannot  affect  the  rights  of 
third  parties  who  were  entitled  to  notice  thereof  and  failed 
to  receive  it.^  If  he  means,  when  sued  in  assumpsit  for 
necessaries,  to  defend  the  action  as  to  part  only,  it  would 
appear  that  his  proper  plea  will  be  that  he  is  not  liable  be- 
yond a  certain  amount,  and  he  should  pay  that  amount  into 
court.'^  But  if  he  means  to  dispute  the  charge  altogether, 
common  honesty  dictates  that  the  articles  unwarrantably  pur- 
chased should  be  restored  without  delay .^  He  may  introduce 
evidence  at  the  trial  to  show  that  the  commodities  in  question 
were  not  necessaries,  inasmuch  as  the  wife  had  incurred  other 
similar  debts  with  other  parties.^  In  a  word,  the  question  is 
(in  the  absence  of  such  evidence  of  necessity  as  may  show  an 
agency  in  law)  whether  there  was  an  agency  and  authority 
in  fact.' 

The  presumption  of  an  agency  on  her  husband's  behalf 
may  be  overcome  by  the  fact  of  a  purchase  by  the  wife  upon 
her  own  or  some  third  person's  credit,  wherever  she  is  really 
trusted  as  principal  herself,  or  as  the  agent  of  some  one  else 
than  her  spouse  ;  or  where  the  third  person  ordered  them  in 
person.^     In  all  cases  the  husband  will  be  discharged  from 

1  Atkins  V.  Curwood,  7  Car.  &  P.  *  Emmet  v.  Norton,  8  Car.  &  P.  506. 
756.                                                                    5  Macq.  Hus.  &  Wife,  136 ;  Oilman 

2  Cothran  v.  Lee,  24  Ala.  .380.  v.  Andrus,  28  Vt.  24L     See  Tuttle  v. 
8  lb;  Johnston  v.  Sumner,  3  Hurl.     Holland,  43  Vt.  542. 

&   Nor.    261.     We    have    seen,   supra,  '^  Renaux  v.  Teakle,  20  E.  L.  &  Eq. 

§  63,  that  the  latest  English  cases  con-  345. 

siderably  reduce  the  tradesman's  right  '^  Read  v.  Teakle,  24  E.  L.  &  Eq. 

of  notice  as  formerly  understood.    Deb-  332. 

enham  v.  Mellon,  L.  R.  5  Q.  B.  D.  894.  8  Though   as   to   the  right  of  her 

98 


CHAP.  III.]         wife's   debts   AND   CONTRACTS.  §  65 

liability  where  it  appears  that  the  goods  were  not  supplied 
on  his  credit,  but  that  the  party  furnishing  them  trusted  the 
wife  individually.^  She  might  have  separate  property,  inde- 
pendently of  her  husband,  to  which  the  tradesman  looked  for 
payment,  or  a  special  allowance  of  sufficient  amount  might 
have  been  made  her  by  her  husband.^  Thus  where  the  hus- 
band during  a  temporary  absence  made  an  allowance  to  his 
wife,  he  was  held  not  to  be  liable  for  necessaries  supplied  to 
her,  the  tradesman  having  trusted  to  payment  from  her  al- 
lowance.^ So  if  credit  be  given  to  a  third  party,  the  husband 
is  not  liable.^  And  of  course,  if  the  tradesman  has  agreed 
not  to  charge  him,  there  is  no  liability  incurred  by  the  hus- 
band.^ Though  the  wife  be  without  property,  the  rule  is  the 
same ;  and  it  would  appear  that  the  husband  may  give  per- 
mission to  trust  his  wife  on  her  separate  credit  without  incur- 
ring liability.^ 

§  65.  Wife's  Necessaries  where  Spouses  live  together  ;  Sub- 
ject continued.  —  The  usual  analogies  of  agency  may  be  tran- 
scended, notwithstanding  the  spouses  live  together,  where 
the  one  is  truly  delinquent,  and  the  other  deprived  of  the 
support  owing  her.  Wherever  the  husband  neglects  to 
supply  his  wife  with  necessaries,  or  the  means  of  procuring 
them,  she  may  obtain  what  is  strictly  needful  for  her  support, 
although  it  be  against  his  wishes,  on  the  pledge  of  his  credit. 

father  or  any   other   third  person  to         *  Harvey  v.  Norton,  4  Jur.  42. 
stand  in  place  of  a  tradesnaan,  under         ^  Dixon   v.   Hurrell,   8    Car.  &   P. 

proper  circumstances  of  necessity,  see  717. 
supra,  §  61,  n.  6  Taylor  v.  Shelton,  30  Conn.  122. 

1  3  Camp.  22 ;  5  Taunt.  356 ;  Pear-  For  circumstances  thus  repelling  the 
son  V.  Darrington,  32  Ala.  227  ;  Stam-  presumption  of  agency,  see  Schoul. 
mers  v.  Macomb,  2  Wend.  454  ;  Moses  Hus.  &  Wife,  §  109  and  cases  cited  ; 
V.  Forgartie,  2  Hill  (S.  C),  335  ;  Carter  Mitchell  v.  Treanor,  11  Ga.  824  ;  2  Tyr. 
V.  Howard,  39  Vt.  106;  Bugbee  v.  523.  The  husband  is  not  relieved  by 
Blood,  48  Vt.  497.  the  single  circumstance  that  the  goods 

2  Levett  I'.  Penrice,  24  Miss.  416 ;  were  charged  on  the  shop  books  to  the 
Simmons  v.  McElwain,  26  Barb.  420;  wife,  since  i^nma/ac/e  the  actual  credit 
McMahon  v.  Lewis,  4  Bush,  138  ;  Weis-  is  always  supposed  to  be  given  to  the 
ker  V.  Lowenthal,  31  Md.  413.  husband.      Jewsbury   v.    Newbold,    40 


3  Holt  V.  Brien,  4  B.  &  Aid.  252 
Montague  v.  Benedict,  3  B.  &  C.  631 
Harshaw  v.  Merryman,  18  Miss.  106 
Renaux  v.  Teakle,  20  E.  L.  &  Eq.  345. 


E.  L.  &  Eq.  518  ;  Godfrey  v.  Brooks, 
5  Harring.  396 ;  Furlong  v.  Hyson,  35 
Me.  332. 

99 


§  66  THE   DOMESTIC   RELATIONS.  [PAET    n. 

And  the  person  furnishing  the  articles  may  sue  the  husband 
notwithstanding  he  has  been  expressly  forbidden  to  trust 
her.^  But  here  the  law  raises  a  presumption  of  agency  only 
for  the  purpose  of  enforcing  a  marital  obligation.  Such  an 
agency  is  perhaps  an  agency  of  necessit3%2  And  the  trades- 
man or  other  party  furnishing  supplies  in  this  case  is  bound 
to  show  affirmatively  and  clearly  that  the  husband  did  not 
provide  necessaries  for  his  wife,  suitable  to  her  condition  in 
life  .3 

§  (56.  "Wife's  Necessaries  -wrhere  Spouses  live  apart.  —  In 
the  second  class  of  cases  which  we  are  to  consider,  the  hus- 
band's liability  for  his  wife's  necessaries  arises  where  they 
are  living  apart.  The  rule  is  that  where  the  husband  aban- 
dons his  wife,  turns  her  away  without  reasonable  cause,  or 
compels  her  by  ill  usage  to  leave  him,  without  adequate  pro- 
vision, he  is  liable  for  her  necessaries,  and  sends  credit  with 
her  to  that  exterit.^  The  wife's  faithfulness,  on  the  one  hand, 
to  her  marriage  obligations  ;  on  the  other,  the  husband's  dis- 
regard of  his  own :  these  afford  the  reason  of  the  above  rule 
and  suggest  its  proper  limitation.  The  wife  in  such  cases  has 
an  authority  ;  but  here  what  some  have  certainly  called  an 
authority  of  necessity.^  Or  we  may  say,  rather,  that  the  law 
by  a  fiction,  infers  an  agency  without  asking  evidence  which 
should  show  authority  in  fact,  and  requires  the  husband, 
under  these  circumstances,  to  maintain  his  wife  elsewhere. 

This  rule  suggests,  then,  three  cases  where  the  wife  may 
pledge  her  husband's  credit  when  they  are  living  apart :  the 
first,  where  he  abandons  her ;  the  second,  where  he  turns  her 
out  of  doors  without  reasonable  cause  ;  the  third,  where  his 

1  Keller  v.  Phillips,  39  N.  Y.  351 ;  pauper,  see  Monson  v.  Williams,  6 
Cromwell  v.  Benjamin,  41  Barb.  558;  Gray,  416  ;  Eumnej'  v.  Keyes,  7  N.  H. 
Woodward  v.  Barnes,  43  Vt.  330.  571 ;  Norton  v.  Rhodes,  18  Barb.  100 ; 

2  Pollock,  C.  B.,  in  Johnston  v.  Sum-  Commissioners  v.  Hildebrand,  1  Carter, 
ner,  3  H.  &  N.  261,  likens  the  agency  555. 

under  such  circumstances  to  that  which         *  2  Kent  Com.  146,  147;  2  Bright 

the  captain  of  a  ship  sometimes  ex-  Hus.  &  Wife,  10-12 ;  Snover  v.  Blair,  1 

ercises.  Dutch.  94 ;  Mayhew  v.  Thayer,  8  Gray, 

3  Keller  v.  Phillips,  39  N.  Y.  351 ;  172. 

Cromwell  v.  Benjamin,  41  Barb.  558  ;         ^  gee  Pollock,  C.  B.,  in  Johnston  v. 
Woodward  i'.  Barnes,  4-3  Vt.  3-30.     As     Sumner,  3  Hurl.  &  Nor.  261. 
to  suing  for  support  of  the  wife  as  a 

100 


CHAP,  in.]      wife's  debts  and  contracts.  §  66 

misconduct  compels  ber  to  leave  him.  In  the  first  two  cases 
his  own  acts  impose  the  necessity,  and  her  conduct  is  in- 
voluntary. But  in  the  third  her  conduct  might  be  considered 
voluntary,  though  induced  by  his  misconduct  ;  and  the  rule 
here  becomes  perplexing.  The  doctrine  of  Horwood  v.  Heffer, 
an  old  case,  is  that  the  wife  is  not  justified  in  leaving  her 
husband  unless  she  has  been  driven  from  the  house  by  actual 
violence  or  apprehension  for  her  personal  safety  ;  and  in  this 
case  the  husband  was  held  not  to  be  liable  since  she  had 
quitted  his  house  because  he  placed  a  profligate  woman  at 
the  head  of  the  table. ^  This  doctrine  has  been  strongly  con- 
demned in  later  times,  and  the  modern  cases  justly  regard 
such  studied  insults  as  capable  of  legal  redress.  If,  therefore, 
the  husband,  by  his  indecent  conduct,  renders  his  house 
unfit  for  a  modest  woman  to  share  it,  the  rule  now  is  that 
she  may  leave  him,  and  pledge  his  credit  elsewhere  for  her 
necessaries.^ 

Where  the  wife  is  justified  on  any  of  the  above  grounds  in 
living  apart  from  her  husband,  he  is  not  discharged  from  lia- 
bility by  showing  that  her  contract  was  in  fact  made  without 
his  authority  and  contrary  to  his  wishes.  Nor  will  his  gen- 
eral advertisement  or  particular  notice  to  individuals  not  to 
give  credit  to  his  wife  affect  the  case."  The  legal  presump- 
tion must  prevail  for  the  wife's  protection. 

Nor,  in  such  cases,  can  the  husband  terminate  his  liability 
for  necessaries  supplied  his  wife  during  the  separation,  by  a 
simple  request  on  his  part  that  she  shall  return.^  And  it  is 
clear  that  if  he  only  offers  to  take  her  back  upon  conditions 
which  are  unreasonable  and  improper,  his  liability  continues.^ 
It  is  the  husband's  duty,  by  some  positive  act,  to  determine 
his  liability  ;  though  if  the  wife  voluntarily  returns,  his  lia- 
bility for  necessaries  furnished  abroad  is  discontinued.     But 

1  3  Taunt.  421.  15  Gray,  78 ;  Bazeley  v.  Forder,  L.  R. 

2  Per  Lord  Ellenborough,  Liddlow    3  Q.  B.  559. 

V.  Wilmot,  2  Stark.  77  ;  1  Selw.  N.  P.         3  4  Esp.  41  ;  1  Selw.  N.  P.  298,  11th 

298,  11th  ed. ;  per  Best,  C.  J.,  Houlis-  ed. ;  2  Stra.  1214.    See  Black  v.  Bryan, 

ton  V.  Smyth,  3  Bing.   127 ;   10  Moo.  18  Tex.  453. 

482 ;  2  Car.  &  P.  22  ;  Descelles  v.  Kad-         *  Emery  v.  Emery,  1  You.  &  Jer. 

mus,  8  Clarke,  51  ;  Hultz  v.  Gibbs,  66  501. 

Penn.  St.  360 ;  Reynolds  v.  Sweetser,         5  Reed  v.  Moore,  5  Car.  &  P.  200. 

101 


§  66  THE  DOMESTIC   RELATIONS.  [PAET  II. 

in  default  of  any  amicable  arrangement,  he  must  institute 
proceedings  in  the  courts  with  divorce  jurisdiction.  And  until 
some  such  unequivocal  act  is  done,  a  person  making  a  proper 
claim  in  a  court  of  law  for  necessaries  supplied  to  the  wife 
may  be  entitled  to  recover  against  him.^  Where  the  wife  had 
good  reasons  for  leaving,  the  husband  is  not  discharged,  by 
the  fact  of  her  subsequent  return,  from  liability  for  necessaries 
furnished  during  her  justifiable  absence.^ 

But  the  wife  should  have  weighty  and  sufficient  cause  for 
leaving  her  husband,  in  order  to  be  permitted,  on  her  part,  to 
pledge  his  credit  abroad.  In  general,  the  same  facts  suffice 
as  justify  divorce  from  bed  and  board.^  But  where  she  leaves 
her  husband  without  sufficient  cause  and  against  his  will,  he 
is  not  Uable  for  her  maintenance  elsewhere,  and  she  cannot 
bind  him ;  especially  if  the  person  furnishing  goods  knows 
that  cohabitation  has  ceased,  and  makes  no  further  inquiries.^ 
Supposing  the  wife  leaves  voluntarily  and  without  sufficient 
cause,  against  her  husband's  wishes,  and  she  afterwards  re- 
turns to  her  husband,  is  he  bound  to  receive  her  ;  and  if  he 
refuse  to  receive  her,  can  she  make  him  liable  for  debts  con- 
tracted thenceforth  for  necessaries  ?  The  current  of  author- 
ities is  in  favor  of  such  a  position,  provided  she  conducted 
herself  properly  in  her  absence.^  Some,  however,  have  sug- 
gested doubts  as  to  this  doctrine  ;  for,  they  say,  since  the 
wife  by  her  own  voluntary  act  discharged  the  husband  from 
his  obligation  to  maintain  her,  by  unnecessarily  quitting  his 
house  without  his  consent,  it  is  but  reasonable  to  say  that  his 
liability  to  support  her  afterwards  should  not  be  revived  by 


1  Reed  r.  Moore,  supra.  See  Atkyns  Etherington  v.  Parrott,  2  Ld.  Kaym. 
V.  Pearce,  2  C.  B.  n.  s.  763.  1006  :  1  Sid.  130;  Bailey  v.  Calcott,  4 

2  Reynolds  v.  Sweetser,  15  Gray,  Jur.  699  ;  Collins  v.  Mitchell,  5  Harring. 
78.  369;  Bevier  v.  Galloway,  71  111.  517: 

3  Brown  v.  Patton,  3  Humph.  135 ;  Harttman  v.  Tegart,  12  Kan.  177 ;  Oin- 
Hancock  v.  Merrick,  10  Cush.  41 ;  Rea  son  v.  Heritage,  45  Ind.  73  ;  Thome  v. 
V.   Durkee,   25    111.    503;    Schindel  r.  Kathan,  51  Vt.  520. 

Schindel,  12  Md.  294  ;  Stevens  v.  Story,  *  Manby  v.  Scott,  1  Sid.  129 ;  1  Mod. 

43    Vt.    327 ;    Barker    v.    Dayton,  28  131 ;  Hindley  v.  Westmeath,  6  B.  &  C. 

Wis.  367;  Thorpe  y.  Shapleigh,  67  Me.  200;  Howard  v.  Whetstone,   10  Oliio, 

235.  365  ;  McCutchen  v.  McGahay,  11  Johns. 

*  Brown    v.  Midgett,    40  Vt.    68;  281. 


10- 


CHAP,  III.]         wife's   debts   AND   CONTRACTS.  §  66 

implication  without  his  express  concurrence  in  consenting  to 
his  wife's  return  to  his  protection,  or  until  cohabitation  was 
restored  by  mutual  agreement,  or  by  the  sentence  of  a  court 
with  appropriate  matrimonial  jurisdiction.^  This  is  fair  rea- 
soning on  general  grounds,  and  applies  a  mutual  doctrine  to 
husband  and  wife  ;  but  the  courts  appear  to  have  thought 
otlierwise. 

If,  however,  as  the  reader  may  have  inferred,  the  wife  elopes 
and  then  commits  adultery,  or  if  her  adultery  causes  separa- 
tion, the  husband  becomes  relieved  from  her  support.  Her 
crime  ought  to  put  an  end  to  her  authority  to  bind  the 
injured  spouse,  and  it  does.^  In  such  case  his  refusal  to  take 
her  back  again  will  not  revive  his  obligation  to  maintain  her. 
But  as  forgiveness  always  interposes  a  bar  to  legal  remedies 
on  behalf  of  the  injured  one,  he  becomes  once  more  liable  for 
her  necessaries,  where  he  voluntarily  receives  her  again  and 
forgives  her.^  There  are  cases  where  the  marital  rights  and 
duties  become  more  confused.  Supposing  the  wife  be  turned 
out  of  doors,  or,  what  amounts  to  the  same  thing,  be  forced 
by  her  husband's  misconduct  to  leave  ;  and  she  afterwards, 
being  beyond  that  shelter  which  every  wife  needs,  commit 
adultery ;  is  he  then  relieved  from  supporting  her  ?  In 
Govier  v.  Hancock  it  was  held  that  he  was,  even  though  his 
own  adultery  caused  her  departure.^  This  was  a  very  harsh 
decision.  The  court,  however,  admitted  that  necessaries  fur- 
nished before  her  own  adultery  could  be  recovered  from  her 
husband.  And  in  a  subsequent  case  it  was  held  that  adulter- 
ous conduct  of  the  wife,  with  the  connivance  of  the  husband, 
or  at  least  without  such  a  separation  of  the  married  pair  as  to 
make  her  misconduct  notorious,  would  not,  per  se,  operate  as 
a  defence  and  protect  the  husband  from  liability.^  And  more 
to  the  point  is  a  case  decided  only  a  short  time  ago,  where 

1  See  2  Bright  Hus.  &  Wife,  13.  ^  Harris  r.  Morris,  4  Esp.  41  ;  Robi- 
But  see  2  Bish.  Mar.  &  Div.  5tli  ed.  son  v.  Gosnold,  6  Mod.  171 ;  Holt  v. 
§  33.  See  Sclioul.  Hus.  &  Wife,  §  523,  Brien,  4  B.  &  Aid.  252 ;  Quincy  v. 
as  to  divorce  remedies.  Quincy,  10  N.  H.  272. 

2  Morris   v.   Martin,   1    Stra.    647  ;  *  6  T.  R.  603. 

Manwaring  v.  Sands,  2  Stra.  707  ;  Har-         ^  Norton  v.  Fazan,  1  B.  &  P.  225. 
die  V.  Grant,  8  Car.  &  P.  512  ;  Schoul. 
Hus.  &  Wife,  §  113. 

103 


§  67  THE   DOMESTIC    RELATIONS.  [PAET   II. 

the  husband  was  held  liable,  even  though  the  wife  had  been 
found  guilty  of  adultery  in  the  divorce  court ;  since  it  ap- 
peared that  he  also  had  been  found  guilty  of  adultery,  so  that 
no  divorce  was  decreed.^  But  one  who  harbors  another 
man's  wife  for  illicit  purposes  is  a  wrong-doer,  and  cannot 
recover  for  her  maintenance,  even  though  she  had  fled  from 
her  own  husband's  cruelty .^ 

§  67.  Wife's  Necessaries  where  Spouses  live  apart ;  Subject 
continued. —  There  is  a  dictum  of  Lord  Holt  to  be  found  in  an 
old  case  (or  rather  in  the  reporter's  note),  which  sometimes 
finds  its  way  to  the  text-books ;  namely,  that,  if  a  husband 
receives  back  his  wife,  he  becomes  liable  for  her  debts  con- 
tracted during  the  whole  period  of  her  unauthorized  absence.^ 
This  seems  very  unreasonable,  where  the  fault  was  on  her 
part.  The  true  doctrine  is,  doubtless,  that  after  such  recon- 
ciliation the  husband  is  liable  upon  her  subsequent  contracts 
only.  And  this  is  the  rule  expressly  asserted  in  some  Amer- 
ican cases.^ 

The  destitute  wife  of  a  lunatic  living  separate  from  her  in 
an  asylum  may  yet  pledge  his  credit  for  necessaries;  ^  though 
not,  of  course,  for  what  she  does  not  need,  as  where,  for 
example  she  receives  sufficient   income  out  of   his  estate.^ 

^  Needham  i;.  Bremner,  L.  R.  1  C.  P.  persons   knowing   her  condition,   who 

583.  chose  to  trust  her,  could  not  complain 

2  Alray  V.  Wilcox,  110  Mass.  443.  if  they  found  themselves  unable  to  sue 

^  Robison  v.  Gosnold,  6  Mod.  171.  her.     But  these  remarks  are  very  cau- 

See  Bing.  Inf.  190,  «.,  Am.  ed.  tiously  put;  and  it  seems  reasonable 

*  Williams  v.  Prince,  3  Strobh.  490;  to  suppose,  as  Justice  BuUer  expresses 

Reese  y.  Chilton,  26  Mo.  508;  Oinson  himself  in  tlie  case  upon  whicli  Lord 

f.  Heritage,  45  Ind.  73.    See  also  Chitty  Kenyon    commented,    that     the    wife 

Contr.  168;  Williams  v.  McGahay,  12  would    become    liable    therefor;    cer- 

Johns.  203.  tainly  if  she  represented  herself  as  a 

How  far  the  wife  can  contract  lia-  single  woman.     Cox  v.  Kitchin,  1  B.  & 

bility  for  necessaries  in  her  own  per-  P.   339;  Childress    v.   Mann,    83   Ala. 

son,  when  the  husband  is  discharged  by  206 ;  McHenry  v.  Davies,  L.  R.  10  Eq. 

her  delinquency,  was  considered  in  the  88.     See  ch.  12,  post,  as  to  wife's  neces- 

case   of  Marshall   v.   Rutton,  8  T.  R.  saries  under  modern  legislation. 
547.    Lord  Kenyon  observed  that  it  was  ^  Reed  v.  Legard,  4  E.  L.  &  Eq.  523; 

not  a  necessary  consequence  of  the  de-  Shaw  v.  Thompson,  16  Pick.  198. 
termination  of  the  husband's  responsi-  ^  Chappell   v.  Nunn,  41  L.  T.  n.  s. 

bility  that  the  wife  should  be  at  liberty  287 ;  Richardson  v.  Du  Bois,  L.  R.  5 

to  act  as  a  feme  sole  ;  but  that  the  con-  Q.  B.  51. 
trary    was   the   truth ;    and    that   any 

104 


CHAP.  III.]         wife's   debts   AND   CONTRACTS.  §  68 

She  cannot  pledge,  it  might  seem,  where  he  is  banished  or  in 
prison,  provided  the  law  recognize  her  as  feme  sole  ;  ^  but  as 
an  agent  of  necessity,  and  to  compel  his  marital  obligation, 
she  ought  to  be  permitted  to  do  so  if  she  desires,  and  not 
unfrequently  does,  where  he  is  in  jail  or  prison.^  If  the  wife 
be  in  an  insane  asylum,  the  husband  is  not  the  less  liable  for 
her  support.3  But  not  where  she  is  in  prison.^  And  it  seems 
that  under  circumstances  of  misconduct  on  the  wife's  part 
the  husband  may  compel  her  to  assent,  after  her  release  from 
confinement,  to  live  separate  on  an  allowance,  without  being 
chargeable  for  her  support  as  one  who  has  turned  his  wife 
out  of  doors.^ 

§  68.  Wife's  Necessaries  where  Spouses  live  apart;  Mutual 
Separation.  —  But  besides  involuntary  separation,  there  is  the 
case  of  voluntary  separation  to  be  considered.  This  last,  now 
so  frequent,  the  law  tolerates,  but  does  not  favor.  The  rule 
is,  that  where  a  husband  and  wife  parted  by  mutual  consent, 
and  a  suitable  allowance  is  furnished  the  wife,  the  husband 
is  not  bound  to  pay  any  bills  which  she  may  have  contracted 
as  his  agent.^  It  is  enough  that  the  separation  be  a  matter 
of  common  reputation  where  he  resides.  But  to  this  allow- 
ance two  things  are  requisite  :  first,  that  it  shall  be  really 
sufficient  for  the  wife  ;  second,  that  it  shall  be  regularly  paid. 
If  either  requirement  be  wanting, — a  fact  which  the  seller 
must  ascertain  at  his  peril,  — the  wife  is  not  confined  to  her 
remedy  on  the  deed  of  separation,  if  any,  but  may  pledge  her 
husband's  credit.  As  to  the  first  requirement,  the  question 
is  not  whether  the  wife  consented  to  accept  a  certain  allow- 
ance as  sufiicient  for  her  support,  but  whether  it  be  actually 

1  Keeve  Dom.  Rel.  86.  5  Wray  v.  Wray,  33  Ala.  187 ;  Brook- 

2  See  Aliern  v.  Easterby,  42  Conn,    field  v.  Allen,  585. 

546.      The   husband   is  liable   for   his  6  8  Car.  &  P.  717  ;  1  Salk.  116;  1  Ld. 

wife's  necessaries,  even  though  she  has  Raym.  444;  Hindley  r.  Westmeath,  6 

been  declared  a,  feme  sole  trader.    Mark-  B.  &  C.  200 ;  Mizen  v.  Pick,  3  M.  &  W. 

ley  V.  Wartman,  9  Phila.  236.  481 ;  Schoul.  Hus.  &  Wife,  §  117  ;  Cal- 

8  Wray  v.  Wray,  33  Ala.  187.     And  kins   v.   Long,  22  Barb.  97 ;  Kemp  v. 

see  Alna  v.  Plummer,  4  Greenl.  258;  Downham,  5  Barring.  417;  Caney  v. 

Wray  v.  Cox,  24  Ala.  337  ;  Brookfield  Patton,  2  Ashra.  140 ;  Baker  v.  Barney, 

V.  Allen,  6  Allen,  585.  8  Johns.  72. 

*  2  Stra.  1122  ;  Bates  v.  Enright,  42 
Me.  105. 

105 


§  69  THE  DOMESTIC   RELATIONS.  [PART  11. 

sufficient  in  the  opinion  of  the  jury.^  As  to  the  second,  the 
mere  covenant  or  contract  of  the  husband  to  pay  separate 
maintenance  will  not  discharge  him  from  liability  for  neces- 
saries ;  for,  as  was  observed  in  a  leading  case,  "  the  common 
law  does  not  relieve  any  man  from  an  obligation  on  the  mere 
ground  of  an  agreement  to  do  something  else  in  the  place, 
unless  that  agreement  be  performed."  ^ 

If  wife  and  husband  part  by  mutual  consent,  and  there  is 
no  allowance  to  the  wife,  it  may  be  presumed  that  the  wife 
has  the  right  to  pledge  her  husband's  credit,  for  he  has  not 
relieved  himself  of  his  marital  obligation.^  It  is  immaterial 
whether  the  wife's  allowance  be  secured  by  deed  or  not,  since 
it  is  the  payment  which  discharges  him.^ 

But  on  account  of  the  increasing  favor  with  which  separa- 
tion deeds  are  held,  allowance  of  maintenance  by  a  formal 
separation  deed  appears  under  the  latest  English  decisions  to 
be  treated  with  so  great  respect  as  to  be  deemed  conclusive 
of  the  extent  and  method  of  a  husband's  liability  for  his  wife's 
support  during  their  separation.^ 

§  69.  Wife's  Necessaries  where  Spouses  live  apart  ;  Pre- 
sumptions ;  Good  Faith.  —  It  has  generally  been  understood 
that  whenever  husband  and  wife  separate,  under  circum- 
stances showing  misconduct  on  the  part  of  either,  the  pre- 
sumption of  agency  changes  sides.  The  fact  of  their  living 
apart  is  of  itself  a  caution  to  all  who  hold  dealings  with  a 
married  pair.  While  they  cohabit  it  is  usually  for  the  hus- 
band to  show  a  want  of  authority  ;  when  they  cease  to  cohabit 
the  seller  must  prove  authority ;  that  is  to  say,  he  must  prove 

1  Thompson  v.  Harvey,  4  Burr.  70  ;  Emery  v.  Neighbour,  2  Halst.  142  ; 
2177 ;  Hodgkinson  v.  Fletclier,  4  Cair.p.  HohJen  v.  Cope.  2  Car.  &  K.  437.  But 
N.  P.  70  ;   Pearson    v.  Darrington,  32     see  Ewers  v.  Hutton,  -3  Esp.  255. 

Ala.  227  ;  Liddlow  v.  Wilmot,  2  Star-  ^  Eastland  v.  Burchell,  L.  R.  3  Q. 

kie,  77 ;  Emmet  v.  Norton,  8  Car.  &  P.  B.  D.  432.     Qu.  whether  the  wife  has 

506.  any  remedy  afforded  her  under  such  cir- 

2  Nurse  v.  Craig,  5  B.  &  P.  148,  per  cumstances  for  procuring  the  mainten- 
Heath,  J.  ;  Hindley  v.  Westmeath,  6  B.  ance  which  it  continues  the  husband's 
&  C.  200  ;  Lockwood  v.  Thomas,  12  duty  to  render.  Lush,  J.,  in  this  case 
Johns.  248;  Kimball  u.Keyes,  11  Wend,  seems  to  rest  the  wife's  general  right 
33.  to  pledge  her  husband's  credit  too  ex- 

3  Ross  V.  Ross,  69  111.  569.  clusively  upon  the  doctrine  of  agency. 
*  Hodgkinson  v.  Fletcher,  4  Camp.     See  §  70,  post. 

106 


CHAP.  lU.]         wife's   debts   AND   CONTRACTS.  §  70 

that  the  wife  was  in  need  of  the  goods,  that  the  husband 
failed  to  supply  her,  and  that  the  wife  was  not  at  fault. 
Prima  facie^  therefore,  a  woman  living  apart  from  her  hus- 
band, upon  either  voluntary  or  involuntary  separation,^  has 
no  authority  to  bind  him.^  This  contrast  of  presumptions  is 
subject  to  the  new  English  doctrine  lately  commented  upon, 
which  seems  to  put  all  new  tradesmen  on  their  guard  in  their 
first  dealings  with  a  married  woman.^  Where  the  husband  is 
merely  absent  from  home  for  temporary  purposes,  the  wife's 
presumed  authority  continues.*  And  where  the  fact  of  sepa- 
ration is  not  commonly  known,  or  where,  by  occasional  visits, 
the  husband  keeps  up  the  appearance  of  cohabitation  with  his 
wife,  he  has  generally  been  considered  jor^'ma  facie  liable  as 
before  ;  ^  though  notice  of  an  allowance  is  notice  of  his  dis- 
sent to  the  wife's  contracts.^  He  may  agree  with  the  wife's 
tradesman,  while  living  apart  from  her,  that  the  goods  sup- 
plied shall  not  be  charged  to  him ;  and  to  such  special  agree- 
ment the  tradesman  will  be  heldj 

Courts  will  always  regard  the  rule  of  good  faith  in  matters 
relative  to  the  wife's  necessaries.  Thus  if  the  husband  and 
wife  be  living  apart  without  the  husband's  fault,  and  he 
wishes  to  terminate  his  liability  by  requesting  her  to  return 
home,  his  conduct  must  show  sincerity  ;  though,  if  his  inten- 
tions are  bona  fide,  and  he  makes  suitable  provision  at  his 
own  home,  the  wife  forfeits  all  claim  to  further  support  by 
refusing  to  return.^ 

§  70.  Wife's  Necessaries  ;  Summary  of  Doctrine.  —  The  com- 
mon-law  doctrine,  as  we  have  seen,  makes  the  ground  of  the 
husband's  liability  for  his  wife's  necessaries  essentially  that 


1  Johnston   r.    Sumner,    3    Hurl.  &,         ^  Supra,  §  63  ;  Debenham  v.  Mellon, 

Nor.  261,  per  Pollock,  C.  B.,  and  au-  L.  R.  5  Q.  B.  D.  394. 
thorities  there  commented  upon.  *  Frost  v.  Willis,  13  Vt.  202. 

2  Etherington    v.   Parrott,    2    Ld.         5  Rawlins  v.  Vandyke;  3  Esp.  250, 

Eaym.  1006  ;  Montague  v.  Benedict,  3  per  Lord  Eldon. 

B.  &  C.  631  ;  Walker  v.  Simpson,  7  W.         6  Hinton  v.   Hudson,   Freem.   248  ; 

&  S.  83 ;  Mitchell  v.  Treanor,  11   Ga.  Kimball  v.  Keyes,  11  Wend.  33. 
324  ;  Rea  v.  Durkee,  25  111.  503 ;  Schoul.         ^  Dixon  v.  Hurrell,  8  Car.  &  P.  717. 
Hus.  &  Wife,  §  119  ;  Stevens  v.  Story,         ^  Walker  v.   Laighton,   11   Foster, 

43  Vt.  327;  Sturtevant  v.   Starin,   19  111.      And  see  Cartvvright   v.   Bate,  1 

Wis.  268.  Allen,  514. 

107 


§  70  THE  DOMESTIC  RELATIONS.  [PAKT  H. 

of  agency.  This  agency  is  stated  as  an  agency  of  necessity 
where  a  deserving  wife  stands  in  want  of  supplies  because 
of  her  husband's  misconduct.  But  in  truth  such  necessity 
transcends  all  the  analogies  of  an  authorized  representation, 
and  inasmuch  as  the  wife  has  no  propei-ty  and  is  legally 
dependent  on  her  husband,  a  right  to  supply  her  wants  upon 
his  credit  is  inferred  from  the  nature  of  her  situation.  When 
both  spouses  live  together,  the  wife  may  pledge  her  hus- 
band's credit  for  necessaries,  unless  he  supplies  them  other- 
wise, and  so  performs  his  duty  after  his  own  method  ;  if  they 
separate,  his  liability  continues  commensurate  with  his  obli- 
gation, so  that  she  can  only  pledge  his  credit  when  the  fault 
was  not  her  own,  but,  being  justified  in  her  conduct,  the 
conjugal  right  to  necessaries  is  perfect,  and  consequently 
enforceable  in  this  manner,  unless  he  performs  his  duty  after 
his  own  method.  The  discrepancy  of  the  cases  relates  chiefly 
to  presumptions  in  favor  of  the  person  who  supplies  the 
necessaries ;  and  here,  as  we  have  seen,  the  latest  decisions 
leave  it  in  doubt  how  strong  a  presumption  cohabitation  as 
husband  and  wife  furnishes  by  itself.  Formerly  it  was 
thought  that  private  arrangements  between  husband  and 
wife,  where  they  lived  together,  could  not  be  set  up  against 
the  seller  who  had  no  notice  thereof ;  but  latterly  the  Eng- 
lish inclination  has  been,  as  we  have  seen,i  to  limit  the 
implied  agency  of  the  wife,  during  cohabitation,  to  those  whose 
dealings  have  already  been  recognized  by  the  husband,  and 
who  therefore  ought  to  have  notice  of  revocation  ;  which  rule 
of  course  narrows  down  the  presumption.  Whatever  pre- 
sumption of  authority  may  be  inferred  from  cohabitation, 
separation  raises  the  counter-presumption  that  the  wife  has 
no  authority  to  pledge  her  husband's  credit.'  Upon  the 
whole,  to  reconcile  the  earlier  and  later  decisions,  the  wife's 
right  of  procuring  necessaries  on  her  husband's  credit  may  be 
deduced  from  these  two  combined  considerations  :  (1)  That 
where  the  husband  proves  remiss  in  furnishing  needful  sup- 
port, the  wife  has  the  right  to  compel  such  support  by  pledg- 
ing his  credit,  whether  they  cohabit  or  dwell  apart,  so  long 

1  Supra,  §  63. 

108 


CHAP.  III.]         wife's   debts   AND   CONTRACTS.  §  71 

as  misconduct  on  her  part  has  not  absolved  him  from  the 
conjugal  duty,  —  this  rule  of  compulsion  taking  largely  the 
place,  in  modern  times,  of  the  old  remedies  formerly  pursued 
in  the  ecclesiastical  courts ;  (2)  That  any  wife  may  be  the 
agent  of  her  husband  and  bind  him  to  the  extent  of  her 
authority,  like  otiier  representatives.  In  short,  the  rule  of 
agency  as  to  wife's  necessaries  is  carried  far  enough  in  actual 
practice  to  make  that  agency  a  fiction  for  the  sake  of  a  wife's 
self-protection  against  her  unfaithful  spouse.^ 

We  may  add  that  the  husband's  express  contract  with 
others,  or  his  express  promise  or  express  sanction  comes  in 
aid  of  such  legal  inference  concerning  his  liability  for  supplies 
furnished  his  wife,  as  may  be  drawn  from  any  of  the  matri- 
monial situations  which  we  have  considered.^ 

§  71.  "Wife's  Necessaries;  Miscellaneous  Points.  —  Marriage 
de  faeto^  or  reputed  marriage,  is  alwaj^s  sufficient  to  charge 
the  husband  with  his  wife's  necessaries.  There  seem  to  be 
three  reasons  why  this  should  be  so :  one,  that  a  tradesman 
cannot  be  expected  to  inquire  into  such  matters  ;  another,  that 
agency  binds' any  principal;  the  third,  that  it  is  just  that  a 
man  who  holds  out  a  woman  to  society  as  his  wife  should 
maintain  her  as  such.  Hence  an  agency  is  to  be  inferred 
wherever  there  is  cohabitation  of  parties  as  husband  and 
wife  ;  though  not,  it  would  appear,  where  the  cohabitation  is 
irregular  and  calculated  to  raise  a  different  impression,  and 
strong  proof  of  actual  authority  bestowed  is  not  furnished.^ 

1  That  agency  is  not  the  full  meas-  her  rights  against  an   unfaithful  hus- 

ure  of  the  wife's  power  to   bind  her  band  in  self-protection.     The   English 

husband  for  what  she  needs  is  further  courts  included  articles  of  peace  against 

seen  in  the  decisions  upon  tlie  point  of  the  husband  under  necessaries.    Supra, 

a  wife's  legal  expenses  already  noticed.  §  61,  n.    But  they  stopped  short  at  in- 

Supra,   §  61,  n.     Here  there   is   some  dictment  of  the  husband   for  assault, 

confusion  in  the  decisions ;  but  a  dispo-  Supra,  §  61,  n. 

sition  very  clear  is  shown  by  the  courts         2  g^e  e.  g.  Daubney  v.  Hughes,  60 

to  allow  the  wife  in  numerous  instances  N.  Y.  187.    Any  notice  intended  to  ter- 

to  prosecute  or  defend  in  furtherance  minate  the  continuance  of  an  express 

of  her  marital  rights,  even  tliough  it  be  contract  must,  in  order  to  be  effectual, 

against  the   husband  himself.     Incon-  be  appropriate  thereto.     Ih.     And  see 

sistently  enough,  the  fiction  of  agency  Mickelberry  v.  Harvey,  58  Ind.  523. 
as  to   necessaries  has  been   here   em-         ^  2  Esp,   637.     And   see   1   Greenl. 

ployed ;  but  the  true  ground  is  rather  Evid    §  207 ;  1  Camp.  245 ;  Jewsbury 

that  the  wife  is  permitted  to  maintain  v.  Nevvbold,  40 E.  L.  &  Eq.  518;  Munroe 

109 


§  71  THE   DOMESTIC   EELATIONS.  [PART  II. 

An  adult  husband  is  bound  on  the  contract  of  his  minor 
wife  for  necessaries.^  And  a  minor  husband  is  liable  for 
necessaries  furnished  his  wife,  whether  she  be  minor  or  adult.^ 
The  ordinary  rules  of  husband  and  wife,  therefore,  appl}^  so 
far  as  such  necessaries  are  concerned.  If  old  enouph  to  con- 
tract  marriage,  an  infant  is  presumed  old  enough  to  pay  for  his 
wife's  board  and  lodging  as  well  as  his  own.^  But  with  re- 
gard to  his  wife's  general  contracts  it  would  seem  that  infancy'-, 
which  incapacitates  him  from  making  contracts  in  person,  also 
disqualifies  him  from  employing  an  attorney. 

As  an  agent  duly  authorized,  the  wife  may  doubtless 
pledge  her  husband's  credit  for  the  necessaries  of  the  chil- 
dren, as  well  as  her  own.  But  upon  the  doctrine  of  pre- 
sumptions and  an  implied  authority  from  him  to  do  so,  the 
common  law  is  more  reserved.  "Family  necessaries  "  is  an 
expression  of  our  later  statutes  which  indicates  a  growing 
favor  in  that  direction,  and  modern  custom  may,  of  course, 
extend  the  implied  scope  of  an  agency  beyond  earlier 
usage.* 

But  as  the  obligation  of  a  husband  to  support  does  not 
extend  beyond  his  wife  and  own  children,  nor  even  to  step- 
children, a  wife  cannot  ordinarily  make  a  binding  contract  to 
support  her  own  parent,  brother,  sister,  or  near  relatives, 
either  at  his  expense  or  her  own,  since  she  is  neither  sui  juris 
nor  presumably  his  agent  for  that  purpose.^ 

Policy  has  regarded  parental  claims  for  necessaries  fur- 
nished to  a  wife  with  great  distrust.  Such  claims  may  doubt- 
less accrue  under  an  express  contract.*^  But  the  law  will  not 
ordinarily  imply  a  contract,  as  against  a  son-in-law,  to  pay  his 
wife's  board  while  staying  at  her  father's  house.  Some  of  the 
latest  cases,  nevertheless,  imply  a  promise  on  the  husband's 
part  to  pay  his  wife's  board,  where  she  goes  to  her  parent's 
house  upon  a  mutual  understanding  that  she  may  stay  there 

V.  De  Chemant,  4  Camp.  215 ;  Schoul.  3  /j. 

Hus  &  Wife,  §  122.  *  gee  legislative  changes,  post.    And 

1  Nicholson  v.  Wilborn,  13  Ga.  467  see  Cook  v.  Ligon,  54  Miss.  368  ;  Pow- 

2  Cantine    v.    Phillips,    5   Harring.  ers  v.  Russell,  26  Mich.  179. 
428.     And  see  Bush  v.  Lindsey,  14  Ga.  ^  oiney  v.  Howe,  89  III.  556. 

687.  6  Daubney  v.  Hughes,  60  N.  Y.  187. 

110 

< 


CHAP.  III.]         wife's   debts   AND   CONTKACTS.  §  72 

indefinitely,  the  spouses  having  quarrelled.^  With  the  grow- 
ing laxity  of  the  marriage  union,  the  parent's  intervention 
on  a  daughter's  behalf  against  her  husband,  with  the  view  of 
procuring  her  divorce,  and  boarding  her  at  the  husband's 
cost  meantime,  is,  unhappily,  becoming  far  more  common 
than  formerly,  and  more  readily  encouraged  by  the  courts. 

The  reader  has  perceived  that  the  claim  for  a  wife's  neces- 
saries involves  two  elements  :  articles  furnished  must  be  of 
the  suitable  class,  such  as  food,  dress,  or  medical  attendance  ; 
and,  furthermore,  of  that  class  the  wife  must  be  destitute  of 
such  supply  as  befits  her  condition  and  the  means  and  station 
of  her  husband.  Hence  a  blending  of  law  and  fact ;  and 
hence,  moreover,  much  confusion  in  laying  down  the  rules, 
though  a  tradesman  has  not  always  to  inquire  strictly. 
Where  one  has  supplied  the  wife  with  articles,  some  of  which 
are  necessaries  and  some  are  not,  some  of  which  were  rightly 
furnished  her  and  some  of  which  were  not,  he  can  yet  recover 
for  the  necessaries,  or  for  what  he  rightly  furnished.^  But  on 
the  other  hand,  one  cannot  furnish  articles  which  were  not 
necessaries  and  not  suitable,  and  recover  a  fraction  of  their 
value  on  the  plea  that  they  might  have  answered  the  purpose 
of  other  articles  which  would  have  been  necessaries.^ 

§  72.  Wife's  General  Agency  for  her  Husband.  —  The  wife 
may  bind  her  husband  for  other  contracts  than  those  for  ne- 
cessaries, where  an  agency  in  the  premises,  express  or  implied, 
can  be  shown.  The  natural  incapacities  of  her  sex  super- 
added to  those  of  the  marriage  state,  the  practical  difficulties 
which  persons  dealing  through  such  an  agent  must  encounter, 
particularly  where  they  find  she  had  exceeded  her  authority, 
and  yet  cannot  hold  her  liable  in  person,  her  own  exposure 
to  fraud,  deceit,  and  coercion,  —  all  these  combine  to  render 
the  wife  an  undesirable  business  representative  ;  and  cases  of 
this  sort  come  rarely  before  the  courts.    But  the  wife  may  be 


i  Burkett  v.  Trowbridge,  61  Me  251  ;         2  Eames  v.  Swectser,  101  Mass.  78 ; 

Daubney    v.   Hughes,   60  N.  Y.   187 ;  Roberts  v.  Kelley,  51  Vt.  97. 
Schoul.  Hus    &  Wife,  §  124.     As  to         3  Thorpe    v.    Shapleigb,    67    Me, 

wife's  own  claims,  raising  funds,  &c.,  235. 
see  Schoul  Hus.  &  Wife,  §  125. 

Ill 


§  72  THE   DOMESTIC   RELATIONS.  [PART   II. 

delegated  an  attorney,  even  under  a  sealed  instrument.^  And 
on  principle  there  is  little  reason  to  doubt  her  capacity  to 
bind  her  husband  in  all  general  transactions  where  he  has 
given  an  express  authority.  So,  too,  her  agency  may  be  in- 
ferred from  his  acts  and  conduct  respecting  her  ;  and  the 
general  rule  applies  that  such  agency  is  to  be  measured  by 
the  scope  of  the  usual  employment.^  It  is  by  virtue  of  such 
an  extended  agency  that  we  find  a  married  woman  enabled 
frequently  to  pledge  her  husband's  credit  beyond  all  ordinary 
rules  as  to  a  wife's  necessaries.  The  usual  cases  in  which  a 
wife  binds  the  husband  on  contracts  not  for  necessaries  ma}' 
be  reduced  to  two  classes :  the  one  where  the  nature  of  his 
employment  is  such  that  the  wife  is  expected  to  share  in  it; 
the  other  where  he  is  absent  from  home,  and  some  one  must 
carry  on  the  household  and  small  business  matters.^ 

Thus,  it  is  held  that  where  a  husband  permits  his  wife  to 
carry  on  a  certain  business  in  his  name,  and  to  draw  in  his 
name  checks  and  notes  to  be  used  in  the  course  of  the 
business,  she  cannot  make  him  liable  as  surety  for  loans  to 
third  persons,  or  upon  accommodation  paper,  merely  because 
of  such  an  agency.*  And  where  her  agency  extends  only  to 
the  performance  of  certain  specific  acts  of  a  general  trans- 
action, she  cannot  bind  him  by  her  acts  and  admissions  re- 
specting other  matters  connected  with  the  general  transaction.^ 
The  husband  may,  by  suitable  conduct,  make  his  wife  his 
agent  for  receiving  settlement  of  claims  due  him  while 
absent;^  or  for  employing  legal  assistance  as  incidental  to 
managing  his  affairs.'^  The  wife  may  be  her  husband's  agent 
as  to  his  real  estate,  not  only  for  the  purpose  of  collecting 
rents  and  making  small  repairs,  but  in  the  more  important 
transactions.     But  as  deeds  and  written  instruments  are  here 

1  Goodwin  v.  Kelly,  42  Barb.  194.  3  See    this    doctrine    discussed    at 

2  Cox  V.  Hoffman,  4  Dev.  &  Batt.  length,  with  citation  of  cases,  in  Schoul. 
180;  Mackinley  v.  McGregor,  3  Whart      Hus.  &  Wife,  §§  127-180. 

869  ;  Camelin  v.  Palmer  Co.,  10  Allen,  *  Gulick  v.  Grover,  2  Vroom,  182 ; 

539;  Ruddock  v.  Marsh,  38  E  L.  &  Eq.  4  Vroom,  463. 
515 ;  Pickering  v.  Pickering,  6  N.  H.  5  Goodrich  v.  Tracy,  43  Vt.  314. 

124;  Gray  v.  Otis,  11  Vt.  628;  Miller         e  stall   v.  Meek,  70  Penn.  St.  181. 

V.  Delamater,  12  Wend.  433 ;  Mickel-  See  Meader  r.  Page,  39  Vt.  306. 
berry  v.  Harvey,  58  Ind.  523.  ^  Buford  v.  Speed,  11  Bush,  338. 

112 


CHAP.  III.]         wife's   debts   AND    CONTRACTS.  §  73 

commonly  requisite,  and  formalities  must  be  followed,  little 
can  be  left  to  inference.  Such  authority  presupposes  usually 
a  husband's  long  absence.  Thus  the  management  of  a  farm 
in  a  husband's  absence,  with  the  care  of  the  stock,  is  not  un- 
frequently  entrusted  to  the  wife.^  It  is  not  to  be  presumed 
that  a  wife  can  revoke  her  husband's  license  on  his  premises, 
given  to  a  third  person,^  nor  grant  an  irrevocable  license 
thereon.3  The  wife  may  represent  her  husband,  not  only  in 
the  general  management  of  his  own  lands,  so  as  to  bind  him, 
but,  under  certain  circumstances,  with  reference  to  her  real 
f^state  in  which  he  has  the  usual  marital  rights,  or  lands 
owned  partly  by  her  and  partly  by  him.* 

Ratification  by  the  husband  is  not  essential  where  the  scope 
of  the  wife's  agenc}^  was  sufficient  without  it ;  ^  but  it  cures 
acts  of  doubtful  authority.  The  wife's  sale  or  gift  of  her 
husband's  personal  property,  even  without  authority,  or  her 
purchase  on  his  behalf,  may  be  confirmed  by  his  subsequent 
acts  amounting  to  ratification  ;  and  one  mode  of  ratification  is 
to  accept  knowingly  the  benefits  of  her  transaction.^  Acts 
done  by  the  wife  in  relation  to  her  husband's  property  with- 
out authority  should  of  course  be  promptly  disavowed  by 
him  within  a  reasonable  time,  if  he  wishes  to  escape  responsi- 
bility.'^ Nor  can  a  husband  stand  by  and  see  his  wife  use  the 
proceeds  of  a  sale  of  his  property  sold  by  her  with,  his  knowl- 
edge, and  afterwards  reclaim  the  property.^ 

§  73.  Effect  of  Marriage  of  Debtor  and  Creditor,  —  A  debt  or 
obligation  due  a  woman  is  extinguished,  not  suspended,  at 
common  law,  by  her  marriage  with  the  debtor  or  obligor,  and 
she  cannot  recover  the  same  against  him  or  his  estate  after 
the  relation  is  ended.^     So,  too,  where  the  woman  is  debtor 

1  Chunot  V.  Larson,  43  Wis.  530 ;  523  ;  Pike  v.  Baker,  53  111.  163 ;  Sliaw 

McAfee  y.  Robertson,  41  Tex.  355.  v.  Emery,   38   Me.   484;   sjipm,   §   64. 

-  Kellogg  V.  Robinson,  32  Conn.  335.  Even  a  trifling  gift  from  the  wife  by 

3  Nelson  v.  Garey,  114  Mass.  418.  way  of  charity  has  been  npheld,  though 

*  Cheney    v.    Pierce,    38   Vt.    515;  without     the     husband's     permission. 

Dresel  v.  Jordan,  104  Mass.  407.  Spencer  v.  Storrs,  38  Vt.  156 

5  See  McAfee  v.  Robertson,  41  Tex.         ^  Hill  v.  Sewald,  53  Penn.  St.  271. 

355.  8  Delano  v.  Blanchard,  52  Vt.  578 ; 

e  Dunnahoe    r.  Williams,   24   Ark.  Huff  r.  Price,  50  Mo.  228. 

264;  Mickelberry  v.   Harvey,  58  Ind.  9  Smiley  v.  Smiley,  18  Ohio  St.  543. 

8  113 


§  75  THE   DOMESTIC   RELATIONS.  [PART   U, 

and  marries  the  creditor,  the  debt  against  her  is  discharged. 
These  doctrines  are  subject  to  the  exception  that  this  must 
not  affect  the  rights  of  third  parties.^ 


CHAPTER    IV. 

EFFECT    OF    COVERTURE    UPON    THE   WIFE'S    INJURIES  AND 

FRAUDS. 

§  74.  General  Principle  Stated.  —  Frauds  and  injuries  may- 
have  been  committed  by  the  wife  ;  or  they  may  have  been  com- 
mitted upon  the  wife.  Again,  they  may  have  been  committed 
before  coverture  ;  or  they  may  have  been  committed  during 
coverture.  Once  more,  they  may  have  reference  to  the  per- 
son; constituting  a  bodily  injury,  such  as  assault  and  battery, 
or  an  injury  to  the  character,  such  as  slander  ;  or  they  may 
have  reference  to  property.  But  in  any  event,  so  far  as  the 
fraud  or  injury  is  made  the  subject  of  a  civil  suit,  the  general 
principle  of  the  wife's  disability  remains  the  same  ;  namely, 
that  the  husband  compensates  or  receives  the  compensation. 

§  75.  Torts  by  the  Wife  ;  Husband  and  Wife  sued  together, 
or  Husband  alone ;  Presumption  of  Coercion,  &c  —  We  have 
seen  that  one  spouse  is  not  criminally  answerable  for  the 
other.2  But  as  to  private  wrongs  or  torts,  the  general  rule 
of  law  is  that  the  husband  is  Hable  for  the  frauds  and  injuries 
of  the  wife,  whether  committed  before  or  during  coverture ; 
if  committed  under  his  coercion  or  by  him  alone,  he,  and  he 
alone,  is  liable;  otherwise,  both  are,  for  the  time  being, 
liable.'^     Where  the  fraud  or  injury  is  committed  in  his  com- 

1  As  to  indorsement  or  assignment  Gage  i\  Reed,  15  111.403;  Carlr.  Won- 
of  such  a  debt,  or  its  evidence  before  der,  5  Watts,  97  ;  Whitman  v.  Delano, 
marriage,  cf.  Guptil  v.  Home,  63  Me.  6  N.  H.  543 ;  Gray  v.  Thacker,  4  Ala. 
405 ;  Long  v.  Kinney,  49  Ind.  2;!5.  136 ;  McKeown  v.  Johnson,  1  McCord, 
And  see  Price  v.  Price,  L.  R.  11  Ch.  D.  578  ;  Benjamin  v.  Bartlett,  3  Miss.  86  ; 
163.  Wright  v.  Kerr,  Addis.   13;  Cassin  v. 

2  Supra,  §  49.  Delnny,  .38  N.  Y.  178  ;  Ball  v.  Bennett, 

3  2  Kent  Com.  149 ;  Bing.  Inf.  2-56,  21  Ind.  427  ;  Marshall  v.  Cakes,  51  Me. 
257:   Angel  v.  Felton,  8  Johns.  149;  308;  Clark  «.  Bayer,  32  Ohio  St.  299. 

114 


CHAP.  IV.]         wife's  injuries   AND   FRAUDS.  §  75 

pany  and  by  his  order,  coercion  is  presumed,  and  the  husband 
becomes,  prima  facie,  the  only  wrong-doer  ;  and  where  com- 
mitted without  his  order  and  in  his  absence,  the  wife  is  in 
reality  the  offending  party,  while  the  husband  has  become 
responsible  for  her  acts  by  reason  of  her  coverture.  In  the 
latter  class  of  cases  the  husband  is  properly  joined  with  his 
wife  in  the  suit ;  for,  if  the  wife  alone  were  sued,  his  property 
might  be  seized  without  giving  him  an  opportunity  for  de- 
fence ;  and  if  the  husband  alone  were  sued,  he  would  become 
chargeable  absolutely.  In  the  former  class  of  cases  the  hus- 
band should  be  sued  alone. ^  Where  the  tort  is  committed 
by  both  spouses,  and  the  wife  does  not  act  by  coercion,  both 
husband  and  wife  may  be  jointly  sued.^ 

This  presumption  of  coercion,  too,  is  much  the  same  in 
civil  as  in  criminal  offences.^  It  is  said  by  Chancellor  Kent 
that  a  wrong  committed  by  the  wife  "  in  company  with " 
her  husband,  or  "  by  his  order,"  renders  the  husband  alone 
liable  ;  but  this  statement  is  too  general  and  should  be 
limited  to  the  case  of  her  acting  by  his  coercion.^  It  is  said 
that  the  privilege  of  presumptive  coercion  extends  to  no 
other  person  than  a  wife,  not  even  to  a  servant.^  The  pres- 
ence of  the  husband  and  his  direction  should  usually  be  con- 
current, in  order  to  amount  to  coercion  ;  and  the  presumption 
of  a  wife's  coercion  in  a  tort  is,  of  course,  not  conclusive,  but 
may  be  controlled  by  evidence  of  the  facts.^ 

As  to  private  wrongs  the  question  occurs,  why  should  the 
husband  be  made  to  stand  in  the  wife's  place  where  the 
offence  is  considered  against  an  individual,  any  more  than 
when  it  is  between  herself  and  the  State.  This  seems  to  be 
the  true  answer,  as  in  case  of  her  debts  dum  sola ;  namely, 

1  Park  V.  Hopkins,  2  Bailey,  411;  s  Reeve  Dom.  Rel.  72;  Barnes  r. 
Matthews  v.  Fiestel,  2  E.  D.  Smith,  90 ;  Harris,  Busbee,  15 ;  Griffin  v.  Reynolds, 
Jackson  v.  Kirby,  37  Vt.  448.  17  How.  (U.  S.)  609. 

2  12  Mod.  246 ;  Vine  v.  Saunders,  5  6  Cassin  v.  Delany,  38  N.  Y.  178 ; 
Scott,  359;  Marshall  v.  Oakes,  51  Me.  Ferguson  v.  Brooks,  67  Me.  251 ;  s^ipra 
308  ;  Gray,  C.  J.,  in  Handy  v.  Foley,  §  50.  Coercion,  if  relied  upon,  should 
121  Mass.  259.  be  set  up  in  defence.     See   Clark  v. 

3  Supra,  §50.  Bayer,  32  Ohio  St.  299;    Ferguson  v. 
*  Gray,  C.  J.,  in  Handy  v.  Foley,  121    Brooks,  67  Me.  251. 

Mass.  259  ;  2  Kent  Com.  149. 

115 


§  76  THE    DOMESTIC   RELATIONS.  [PART   H. 

that  the  husband  adopts  her  and  her  circumstances  together ; 
that  he  takes  her  fortune,  if  she  has  one,  and  assumes  all 
possible  liabilities  therefrom. 

This  statement  suggests  that  the  husband's  liability  is 
after  all  a  limited  one,  where  he,  in  the  first  instance,  was 
free  from  wrong  ;  that  is  to  say,  that  the  death  of  the  wife 
before  the  recovery  of  damages  puts  an  end  to  his  liability 
altogether.  This  is  correct,  not  only  on  the  principle  an- 
nounced in  the  case  of  the  wife's  debts  dum  sola,  but  because 
wrongs,  being  personal,  die  with  the  person,  which  last  is  the 
common  explanation  of  this  rule.  If  the  husband  dies  before 
damages  are  recovered  in  the  suit,  the  wife  alone  remains 
liable.^  So  it  would  seem  that  the  common  law  recognizes  a 
liabilitj'  on  her  part  which  continues  through  the  marriage 
relation  ;  coverture  operating,  however,  so  as  to  suspend  the 
remedy  against  the  married  woman,  and  to  bring  in  as  a  joint 
part}^  the  custodian  of  her  fortune.^ 

§  76.  Torts  by  Wife  which  are  based  on  Contract.  —  There 
are,  however,  not  only  torts  simpliciter,  or  simple  wrongs  at 
law,  but  wrongs  where  the  substantive  basis  of  the  fraud  is 
the  wife's  contract.  The  common  law  has  been  supposed  to 
apply  with  the  same  force  in  both  cases,  partlj'^  because  in  the 
latter  instance  the  person  injured  would  be  otherwise  without 
a  remedy.'^  But  some  modern  cases  rule  tliat  though  the 
husband  is  liable  for  the  wife's  general  frauds,  yet  when  the 

1  2  Bright  Hus.  &  Wife,  22  n. ;  and  Eeynokls,  17  How.  (U.  S)  609 ;  Road- 
see  Stroop  V.  Swarts,  12  S.  &  R.  76.  cap  i-.  Sipe,  6  Gratt.  213;  Schoul.  Hus. 

2  Hence  husband  and  wife  are  sued  &  Wife,  §  137.  Or  for  the  forcible  re- 
together  for  the  libel  or  slander  of  the  moral  of  a  gate.  Handy  v.  Foley,  121 
wife.  McElfreshr.  Kirkendall,  36Iowa,  Mass.  259.  The  fact  that  the  husband 
224.  Exemplary  damages  may  be  al-  is  made  responsible  by  the  fact  of  cover- 
lowed  in  such  action.  Fowler  v.  Chi-  tnrc,  and  did  not  commit  the  wrong  in 
Chester,  26  Ohio  St.  9.  And  generally  person,  cannot  go  in  mitigation  of  dam- 
for  forfeitures  under  a  penal  statute  ages.  Austin  v.  Wilson,  4  Gush.  273. 
where  she  participated.  Austin  r.  Wil-  The  husband  has  full  management 
son,  4  Gush.  273;  McQueen  r.Fulgham,  of  the  defence.  And  we  need  hardly 
27  Tex.  463;  Baker  v.  Young,  44  111.  add  that  he  may  compromise  without 
42;  Enders  v.  Beck,  18  Iowa,  86.  As  his  wife's  assent.  Goolidge  v.  Parris, 
to  suits  to  recover  penalties  for  usury,  8  Ohio  St.  594. 

see    Jackson    v.  Kirby,    37   Vt.    448  ;  3   Macq.    Hus.    &  Wife,    130,   131 ; 

Porter  v.  Mount,  43  Barb.  422.  So,  Head  v.  Briscoe,  5  Car.  &  P.  484,  per 
too,  for  assault  and  battery.     Griffin  v.     Tindal,  C.  J. ;  Reeve  Dom.  Rel.  72,  73. 

116 


CHAP.  IV.]         wife's   injuries   AND   FRAUDS.  §  77 

fraud  is  directly  connected  with  her  contract,  and  is  the  means 
of  effecting  it,  and  part  and  parcel  of  the  same  transaction,  the 
wife  cannot  be  responsible,  nor  can  the  husband  be  sued  for 
the  fraud  together  with  the  wife.^ 

There  are,  however,  cases  where  the  wife  will  bind  her 
husband  by  her  fraudulent  representations  on  the  ground  of 
her  agency.^ 

§  77.  Torts  committed  upon  the  "Wife.  —  So  far  as  the  hus- 
band is  injured,  his  right  of  action  is  sole  ;  but  where  the  wife 
is  the  meritorious  cause  of  action,  the  spouses  join  as  plain- 
tiffs. For  injuries  to  the  person  or  character  of  the  wife, 
therefore,  the  husband  and  wife  at  the  common  law  should 
sue  together.^  But  where  the  right  of  action  for  damages  is 
founded  on  the  prior  possession  of  personal  property,  the  hus- 
band must,  at  common  law,  sue  alone,  since  his  possession  is 
the  possession  of  both.*^  And  the  joinder  of  the  wife  in 
actions  relating  to  personal  property,  where  the  injury  was 
committed  after  marriage,  is  good  ground  of  demurrer,  or 
motion  to  arrest,  or  even  of  error  after  judgment.^  Whether 
the  same  principle  applies  to  property  of  the  wife  parted  with 
before  marriage  is  not  so  clear.  This  is  the  rule,  however, 
when  the  action  is  for  a  wrong,  which  before  the  marriage 
was  committed  in  respect  to  such  property.^  But  where  the 
trover  is  laid  before  the  marriage,  and  the  conversion  after- 
wards, there  has  been  some  controversy,  the  result  of  which 
seems  to  be  that  the  action  is  well  brought,  either  with  or 
without  joining  the  wife,  though  the  better  course  doubtless 
is  to  join  the  wife.'^     The  principle  sought  is  whether  such  a 


^  Liverpool  Adelplii  Loan  Associa-  statutory    changes    as    to    torts    and 

tion  V.  Fairhurst,  9  Exch.  422.  frauds  of  tlie  wife,  see  c.  post. 

2  Taylor  v.  Green,  8  Car.  &  P.  316;  s  Bing.  Inf.  &   Gov.  247,  Am.  ed., 

Schoul.   Hus.   &  Wife,  §  136.     A  bus-  and  cases  cited. 

band  is  liable  in  replevin  for  bis  wife's  *  Bing.  Inf.  &  Gov.  253,  and  cases 

unlawful  detention  of  anotber's  cbat-  cited ;  Gro.  Eliz.   133 ;  1  Glut.  PI.  93 ; 

tels   under   claim   of    title   in  berself.  1  Salk.  114. 

Choen    v.   Porter,   66   Ind.    194.     But  5  Rawlins  v.  Rounds,  27  Vt.  17. 

•wbere  there  is  no  collusion  apparent,  ^   3    Rob.    Pract.    188  ;    Milner    r. 

a  husband  will  not  be  committed  for  Milnes,  3  T.  R.  627;  Fewell  v.  GoUins, 

his  wife's  breach  of  injunction.     Hope  1  Gonst.  207. 
V.   Carnegie,   L.   R.   7   Eq.   254.     For         ^  Powes   v.  Marshall,    1    Sid.  172; 

117 


77 


THE   DOMESTIC   RELATIONS. 


[part  II. 


suit  amounts  to  a  disaffirmance  of  the  husband's  constructive 
title  to  the  goods  on  the  marriage.^ 

The  damages  allowed  as  compensation  for  the  frauds  and 
injuries  sustained  by  the  wife  go  to  the  husband,  as  well  as 
the  rest  of  her  personal  property,  if  recovered  during  his  life- 
time. But  such  suits  survive  to  her  where  she  is  the  meri- 
torious cause  of  action  ;  and  on  the  death  of  the  husband, 
pending  legal  proceedings,  the  wife  may  accordingly  proceed  to 


Ayling  t-.  Whicher,  6  Ad.  &  El.  259 ; 
Blackborne  v.  Haigh,  2  Lev.  107;  3 
Rob.  Pract.  supra.  There  is  some  un- 
certainty on  this  point,  however.  See 
Bac.  Abr.  Baron  &  Feme  (K.)  ;  coidm, 
Brown  v.  Fifield,  4  Mich.  322;  Well- 
born V.  Weaver,  17  Ga.  267. 

1  As  to  injuries  to  the  wife's  real 
estate,  see  infra,  ch.  6.  On  these  prin- 
ciples it  is  held  that  husband  and  wife 
must  sue  together  for  libel  or  slander- 
ous words  spoken  against  the  latter. 
Smalley  v.  Anderson,  2  Monr.  56 ; 
Davies  v.  Solomon,  L.  R.  7  Q.  B.  112  ; 
Throgmorton  v.  Davis,  3  Blackf.  383. 
These  words  must  be  actionable  per  se. 
See  Beach  v.  Ranney,  2  Hill,  309  ;  Sa- 
ville  V.  Sweeney,  4  B.  &  Ad.  514 ;  Ryan 
V.  Madden,  12  Vt.  51.  As  to  slander 
of  wife  charging  her  with  "  adultery," 
see  Shafer  v.  Ahalt,  48  Md.  171.  Spe- 
cial damage  should  be  sliown  in  order 
to  sustain  the  action.  lb. ;  AUsop  v. 
AUsop,  2  L.  T.  n.  s.  290.  W^ords  charg- 
ing her,  while  unmarried,  with  fornica- 
tion, are  actionable.  Gibson  v.  Gibson, 
43  Wis.  23.  Also  for  battery  of  the 
wife.  Pillow  V.  Bushnell,  5  Barb  156. 
Also  for  injuries  sustained  by  her 
through  the  negligence  of  a  common 
carrier.  Heirn  v.  McCaughan,  32Miss. 
17.  Also  for  the  malpractice  of  a 
physician,  even  though  it  afterwards 
cause  her  death.  Cross  v.  Guther}',  2 
Root,  90  ;  Hyatt  v.  Adams,  16  Mich. 
180.  Also  for  frauds  upon  the  wife,  as 
in  case  of  an  action  qui  tarn  to  recover 
penalties  for  a  fraudulent  conveyance. 
Fowler  ;;  Frisbie,  3  Conn.  320.  But 
see  Crump  i-.  McKay,  8  Jones,  32,  as 
to  negligence  "sounding  in  contract," 

118 


not  admitted  to  be  cause  of  action. 
Also  for  malicious  prosecution.  Laugh- 
lin  V.  Eaton,  54  Me.  156.  And  the  rule 
is  the  same  in  all  these  cases,  whether 
the  fraud  or  injury  was  committed  be- 
fore or  during  coverture.  But  if  the 
wife  be  a  privy  to  the  wrong,  or  know- 
ingly suffer  an  injury  to  be  committed 
upon  her,  the  husband  cannot  maintain 
his  action  ;  for  his  right  to  damages 
cannot  be  greater  than  hers  would  have 
been  had  she  remained  single.  Pillow 
V.  Bushnell,  5  Barb.  156.  Nor  can  an 
action  be  maintained  where  the  hus- 
band instigates  the  wrong.  Tibbs  v. 
Brown,  2  Grant's  Cases,  39.  Nor  in 
slander  where  the  words  are  not  action- 
able, though  the  wife  become  ill  in 
consequence  of  the  slander.  Wilson  v. 
Goit,  17  N.  Y.  442.  In  a  joint  action 
for  personal  wrong  to  the  wife,  the  dec- 
laration should  conclude  "  to  their 
damage."  Horton  v.  Byles,  1  Sid.  387 ; 
Smalley  v.  Anderson,  2  Monr.  56.  And 
it  is  a  well-recognized  principle,  both  in 
England  and  America,  that  whenever 
the  wife  is  the  meritorious  cause  of 
action,  her  interest  must  appear  on  the 
face  of  the  pleadings,  or  the  omission 
will  be  considered  fatal.  Staley  v. 
Barhite,  2  Caines,  221 ;  Serres  v.  Dodd, 
5  B.  &  P.  405 ;  Thorne  v.  Dillingham, 
1  Denio,  254;  Pickering  v.  De  Roche- 
mont,  45  N.  H.  67. 

Where  the  tort  was  committed  be- 
fore the  woman  was  married,  the  action, 
if  she  marries  afterwards,  should  be 
brought  by  husband  and  wife  ;  or  if  she 
marries  pending  the  action,  the  hus- 
band is  entitled  to  be  admitted  as  a 
plaintiff.    Gibson  v.  Gibson,  43  Wis.  23. 


CHAP.  IV.]         wife's    injuries   AND   FRAUDS.  §  77 

judgment  and  collect  the  damages  for  herself ;  or  if  her  hus- 
band had  never  brought  an  action,  she  may  then  do  so  in  her 
own  right. ^  The  husband,  on  the  other  hand,  has  no  such 
interest  in  the  suit  at  common  law  that  he  ma^^  prosecute  it 
in  his  own  name  after  his  wnfes  death.  His  joinder  in  the 
first  place  was  only  because  of  the  marriage  relation.  He 
may,  however,  under  some  statutes,  be  let  in  as  her  adminis- 
trator, and  in  such  capacity  prosecute  the  suit  to  its  conclu- 
sion.2  If  the  wife  dies  after  judgment,  the  husband  surviving 
may  take  the  benefits  of  the  suit ;  for  a  judgment  debt  takes 
the  place  of  the  original  cause  of  action.  The  death  of  the 
wife,  pending  suit  for  her  personal  tort,  put  an  end  to  the 
action  altogether  by  the  old  law.^  But  where  the  so-called 
tort  is  referable  rather  to  some  breach  of  contract,  it  might 
survive.* 

Since  the  husband  is  at  the  common  law  entitled  to  the 
society  and  services  of  his  wife,  two  separate  causes  of  action 
may  arise  from  injuries  inflicted  upon  her  person.  One,  in 
the  name  of  both  for  her  own  injuries,  we  have  just  con- 
sidered ;  the  other  is  in  the  name  of  the  husband  alone  per 
quod  consortium  amisit.°  Thus,  if  the  wife  be  wantonly 
bruised  and  maltreated,  her  husband  may  bring  his  special 
action  per  quod  for  the  loss  of  her  society  and  for  his  medical 
expenses.  But  there  can  be  no  special  damage  recovered  by 
the  husband  by  way  of  aggravation  in  the  joint  suit  for  his 
wife's  injuries,  which  is  founded  in  her  meritorious  claim. 
Thus,  in  the  joint  action  for  an  assault  on  the  wife,  the 
surgeon's  bill  cannot  be  recovered  ;  if  for  slander  of  the  wife, 
the  loss  of  wages  cannot  be  claimed  ;  thei'e  the  sole  right  of 
the  husband  should  be  sued  on  in  his  name.*^     Nor,  on  the 

1  Bing.  Inf.  &  Cov.  247,  248 ;  New-  &  3  CI.  Com.  140 ;  Cro.  Jac.  501 ;  ih. 
ton  V.  Hatter,  2  Ld.  Raym.  1208 ;  An-  538 ;  Mewliirter  v.  Hatten,  42  Iowa, 
derson  v.  Anderson,  11  Bush,  327.  288;  Brockbank  v.  Whitehaven  Junc- 

2  Chitty  PI.  74;  Norcross  v.  Stuart,  tion  R.  R.  Co.,  7  Hurl.  &  Nor.  834; 
50  Me.  87  ;  Pattee  v.  Harrington,  11  Whitcomb  v.  Barre,  37  Vt.  148 ;  Ka- 
Pick.  221;  Crozier  v.  Bryant,  4  Bibb,  vanaugh  v.  Janesville,  24  Wis.  618; 
174  ;  Saltmarsh  v.  Candia,  51  N.  H.  71.  Hooper  v.  Haskell,  56  Me.  251. 

2  Bac.   Abr.  Baron  &  Feme  (K.)  ;         ^  Dengate  v.  Gardiner,  4  M    &  W. 

Meese  r.  Fond  du  Lac,  48  Wis.  323.  6;  Kavanaugh   v.  Janesville,  24  Wis. 

4  Long  V.  Morrison,  14  Ind.  595.  618  ;  King  v.  Tliompson,  87  Penn.  St. 

119 


§  78  THE   DOMESTIC   RELATIONS.  [PART   II. 

other  hand,  can  the  husband  recover  for  the  wife's  mental 
anguish  or  other  damages  incidental  to  the  joint  suit  in  his 
sole  suit  for  damages.^  It  would  appear  that  the  husband 
may  release  the  damages  for  his  wife's  iujuries,  and  then  re- 
cover for  the  loss  arising  to  himself  alone  ;  he  may  certainly 
release  or  compromise. ^  Where  the  husband  is  alone  en- 
titled to  the  damages,  and  in  case  of  his  death  they  would 
go  to  his  representatives,  he  must  sue  alone  ;  and  his  sole 
suit  will  not  be  defeated  by  his  wife's  death  before  action 
brought.^ 

Of  the  suits  which  the  husband  may  bring  for  loss  of  his 
wife's  society,  that  for  enticing  a  wife  away  has  already  been 
considered.^  Somewhat  akin  to  this  is  his  action  for  his 
wife's  seduction,  founded  on  the  same  general  marital  rights. 
But  the  common  law  still  keeps  up  its  legal  fiction  of  the 
wife's  civil  incapacity,  and  treats  the  seducer  as  guilty  of 
trespass  by  force  of  arms,  whether  the  wife  actually  consent 
to  the  guilt  or  not.^  A  husband  who  lives  apart  from  his  wife, 
under  articles  of  separation  or  a  decree  of  divorce  from  bed 
and  board,  cannot  maintain  a  suit  for  damages  per  quod,  since 
he  has  suffered  no  loss  of  her  society.^  The  wife  was  never 
permitted  to  sue  for  the  loss  of  her  husband's  society  and  ser- 
vices,'' though  on  general  principle  it  is  hard  to  see  why,  save 
for  her*  coverture,  she  should  not  have  been. 

§  78.  Torts  upon  the  Wife  ;  Instantaneous  Death ;  Statutes. 
—  Instantaneous  death  of  the  husband  or  wife,  at  the  com- 
mon law,  gave  no  right  of  action  to  the  survivor.     Nor  could 


365.     See  Lewis  v.  Babcock,  18  Johns,  usual.     Chamberlain   v.  Hazlewood,  5 

443.  M.  &  W.  517. 

1  Hooper  v.  Haskell,  56  Me.  251.  e  Schoul.  Hus.  &  Wife,  §  140;  Fry 

"  Soutliworth   V.   Packard,  7  Mass.  y.  Derstier,  2  Yeates,  278;   Ballard  v. 

95;  Anderson   v.  Anderson,   11  Bush,  Russell,  36  Me.    196;  Burger  v.  Bels- 

327.  ley,  45  111.  72. 

3  Wheeling  v.  Trowbridge,  5  W.  Va.  '  2  Kent  Com.  182 ;  Tuttle  v.  Chicago 

353.  R.,  42  Iowa,  518 ;  Carey  v.  Berkshire 

1  Supra,  §  41.     As  to  this  seduction  II.,   I   Cush.   475.      An  action   cannot 

suit,    see     Schoul.    Hus.    &     Wife,   §  in  general  be  maintained  by  tlie  wife, 

140.  there  being  no  misfeasance  towards  her 

5  .3  Bl.  Com.  139,  140.     An  action  independently  of  a  contract  with  the 

on  the  case  is  allowable,  though  not  husband  alone.    Longmeid  i-.  HoUiday, 


6  Exch.  761. 


120 


CHAP.  IV. J         wife's   INJUKIES    AND    FRAUDS. 


§79 


the  husband,  whose  wife  was  thus  killed  by  another's  care- 
lessness, sue  per  quod,  because  he  could  not  be  said  to  have 
lost  her  society  during  any  portion  of  her  life.^  A  wife,  of 
course,  could  not  sue  for  the  death  of  her  husband.^  Where 
the  wife  dies  in  consequence  of  one's  carelessness,  as  in  case 
of  malpractice,  the  husband  may  recover  damages  for  the 
injury  accruing  to  himself  before,  but  not  for  the  injury  in 
consequence  of,  the  death.^  Modern  legislation  has  supplied 
many  new  remedies  much  needed  in  these  classes  of  cases, 
particularly  with  reference  to  injuries  and  loss  of  life  occa- 
sioned through  the  carelessness  of  railroad  companies  and 
other  common  carriers.'* 

§  79.  Torts  upon  the  "Wife  ;  Miscellaneous  Points.  —  It  should 
be  observed  that,  wherever  husband  and  wife  are  both  in- 
jured, they  liave  two  distinct  and  separate  causes  of  ac- 
tion, which  must  not  be  confounded.  Thus,  for  libel 
against  husband  and  wife,  the  husband  must  sue  alone 
for  the  libel  against  him,  and  husband  and  wife  jointly  for 
the  libel  against  her;  they  cannot  sue  together  for  the  libel 


1  Yelr.  89,  90;  Baker  v.  Bolton,  1 
Camp.  493 ;  Green  v.  Hudson  R.  R. 
Co.,  28  Barb.  9:  Hallenbeck  v.  Berk- 
shire R.  R.  Co.,  9  Cush.  109.  See 
Georgia  R.  R.  Co.  v.  Wynn,  42  ^eo. 
331,  wliich  considers  a  statute  provid- 
ing only  for  a  wife's  suit  by  reason  of 
her  husband's  death,  by  railroad  acci- 
dent, and  not  for  a  luisband's  suit  by 
reason  of  his  wife's  death. 

-  2  Kent  Com.  182 ;  Carey  v.  Berk- 
shire R.,  1  Cush.  475. 

3  Hyatt  V.  Adams,  16  Mich.  180 ; 
Long  V.  Morrison,  14  Ind.  595. 

*  Dickens  v.  N.  Y.  Central  R.  R.  Co. 
28  Barb.  41  ;  Stat.  9  &  10  Vict.  c.  93 ; 
Mass.  Gen.  Stats,  c.  63,  §  97.  And 
wlierever  by  special  statute  some  riglit 
of  action  for  damages  is  given  (as 
against  a  town  for  a  defective  high- 
way), some  of  our  courts  seem  disposed 
to  allow  the  husband's  medical  ex- 
penses by  way  of  aggravation,  in  the 
joint  suit  of  husband  and  wife,  even 
though  he  may  not  be  empowered  to 


bring  a  suit  in  his  own  name  to  recover 
for  them  as  damages  per  quod.  Har- 
wood  V.  Lowell,  4  Cush.  310;  Sanford 
V.  Augusta,  32  Me.  53G;  Hunt  v.  Win- 
field,  36  Wis.  154  ;  Fuller  v.  Naugatuck 
R  R.  Co.,  21  Conn.  557.  See  Carlisle 
V.  Town  of  Sheldon,  38  Vt.  440.  In 
some  of  these  statutory  cases,  however, 
the  husband  may  bring  his  separate 
suit  per  quod  as  before,  in  addition  to 
the  suit  for  the  wife's  injury.  Klein  v. 
Jewett,  26  N.  J.  Eq.  474  ;  Kavanaugh 
V.  Jauesville,  24  Wis.  618 ;  Whitcomb 
V.  Barre,  37  Vt.  148. 

Where  husband  and  wife  were  in- 
jured simultaneously,  and  both  died,  the 
husband  a  little  before  the  wife,  it  was 
held  that  the  riglit  of  action  vested 
absolutely  in  the  wife.  Waldo  v.  Good- 
sell,  33  Conn.  462.  Where  the  action 
is  brought  in  assumpsit,  as  upon  a  car- 
rier's contract  to  carry  safely,  the  con- 
siderations are  those  of  contract,  not 
tort.  See  Pollard  v.  New  Jer- '>v  R.,  lOT 
U.  S.  Supr.  223. 

121 


§  80  THE   DOMESTIC    RELATIONS.  [PABT  II. 

against   both.^     But  actions   are  sometimes  consolidated   in 
practice.^ 

We  may  notice  finally  one  important  distinction  made  be- 
tween the  wife's  general  contracts  and  her  frauds  and  inju- 
ries. In  the  one  case  the  man  is  held  liable  to  third  parties 
for  her  acts  as  agent,  even  though  never  married  to  her  ;^ 
and  simple  cohabitation  is  sufficient  to  charge  him.  But 
simple  cohabitation  will  not  be  enough  to  make  him  respon- 
sible for  her  civil  injuries.  Marriage  in  fact  is  essential.  And 
this  latter  principle  applies  likewise  where  he  seeks  indemnity 
for  her  injuries.*  The  facility  with  which  an  agency  is  created 
at  law  may  serve  to  explain  the  difference  between  the  two 
cases. 


CHAPTER   V. 


EFFECT  OF  COVEETUKE  UPON  THE  WIFE  S  PERSONAL 

PROPERTY. 

§  80.  Wife's  Personal  Property  in  General;  Marriage  a  Gift 
to  the  Husband.  —  Personal  property  comprises  things'in  pos- 
session, or  goods  and  effects,  such  as  money,  furniture,  and 
farm  stock,  which  one  holds  as  the  property  itself,  and  things 
in  action,  such  as  bonds  and  other  outstanding  debts.^  The 
husband's  title  to  his  wife's  personal  property  at  the  common 
law  is  either  absolute  or  qualified,  according  as  the  particular 
property  belongs  to  the  one  class  or  the  other.  We  shall 
therefore,  in  this  chapter,  treat  of,  first,  the  wife's  things  or 
personal  property  in  possession  ;  second,  her  things  or  per- 
sonals  in  action. 

1  Gazynski  v.  Colburn,  11  Cush.  10  ;  5  2  Bl.  Com.  389,  396  ;  2  Kent  Com. 

EbersoU  i:  King,  3  Binn.  5-55;  Xewton  351.     See  1  Schoul.  Pers.  Prop.  32-37, 

V.  Hatter,  2  Ld.  Raym.  1208.    For  statu-  where  tlie  leading  distinctions  between 

tory  clianges  as  to  injuries  sustained  "  tilings  in  possession  "  and  "  things  in 

by  tlie  wife,  see  c. /wsi'.  action"    are    noticed    at    length,   and 

'  Henistead  v.  Gas  Light  Co.,  3  Hurl,  where  reasons  are  stated  why  the  terms 

&  C.  745.  "  corporeal  "  and    "  incorporeal  "   per- 

3  Supra,  §  71.  sonal  property  should  be  preferred  at 

*  Overholt  v.  Ellswell,  1  Ashm.  200.  this  day. 
See  Norwood  v.  Stevenson,  Andr.  227.. 

122 


CHAP,  v.]  wife's  personal  phoperty.  §  81 

But  in  general  it  may  be  premised  that  the  wife's  personal 
property  goes  to  the  husband,  whether  belonging  to  her  at 
the  time  of  marriage,  or  acquired  afterwards  by  gift,  bequest, 
or  purchase ;  whether  actually  or  beneficially  possessed ; 
whether  principal  fund  or  income.  So  her  earnings  belong  to 
her  husband.  Marriage,  therefore,  operates  in  this  respect  as 
a  gift  to  the  husband ;  and  while  the  gift  is  only  qualified,  so 
far  as  things  in  action  are  concerned,  it  lies  in  his  power  to 
make  the  gift  absolute  during  coverture.-'- 

This  privilege  of  the  husband  lasts  as  long  as  the  marriage 
relation  continues,  even  though  he  be  living  apart  from  his 
wife  in  adultery,  and  she  acquire  the  property  by  her  own 
labor  2  or  by  bequest.^  Neither  divorce  from  bed  and  board, 
nor  separation,  takes  away  his  right.^  But  divorce  from  the 
bonds  of  matrimony,  or  the  death  of  either  party,  puts  an  end 
to  the  gifts  of  coverture,  leaving  open  the  adjustment  of  the 
rights  of  the  respective  parties  with  one  another,  or  between 
the  survivor  and  the  representatives  of  the  deceased,  on  other 
principles  to  be  hereafter  explahied. 

And  it  is  a  matter  of  course  that  the  wife's  property  should 
be  hers  in  her  own  right,  in  order  that  the  husband's  title 
may  attach.  For  property  may  come  to  her  with  restrictions 
upon  the  husband's  rights,  such  as  the  giver  has  seen  fit  to 
imjjose.^  Her  paraphernalia  follow  a  rule  somewhat  pecu- 
liar.^ And,  as  we  shall  see  in  later  chapters,  much  of  the 
common  law  bearing  upon  this  subject  is  practically  super- 
seded by  the  law  of  the  wife's  separate  property. 

§  81.  Earnings  of  Wife  vest  in  Husband.  —  Earnings  of  the 
wife  belong  to  the  husband.  The  rule  of  the  common  law  is 
that  he  takes  all  the  benefits  of  her  industry.^     This  rule 

1  1  Bright  Hus.  &  Wife,  34,  35 ;  Co.  Lane,  2  Chitty,  117 ;  Washburn  v.  Hale, 
Litt.  305  a,  351  6 ,-  2  Kent  Com.  130,  10  Pick.  429 ;  Pi%scott  v.  Brown,  23 
&c. ;  Campbell  v.  Galbreath,  12  Bush,  Me.  305 ;  1  Roll.  Abr.  343.  But  see 
459.  Divorce,  infra. 

2  Russell  V.  Brooks,  7  Pick.  65 ;  Tur-  s  Co.  Litt.  351 ;  11  Mod.  178. 

tie  V.  Muncy,  2  J.  J.  Marsh.  82;  Arm-  6  gee  post,  cs.  15,  16,  as  to  rights 

strong  V.  Armstrong,  32  Miss.  279.  upon  death  of  a  spouse. 

3  Vreeland  v.  Ryno,  26  N.  J.  Eq.  7  Macq.  Hus.  &  Wife,  44, 45 ;  Reeve 
160.  Dom.  Rel.  63;  McDavid  v.  Adams,  77 

*. Glover   V.   Proprietors   of   Drury    111.155;  Yopst  v.  Yopst,  51  Ind.  61. 

123 


§  82  THE  DOMESTIC   RELATIONS.  [PART  II. 

applies  to  money  earned,  and  to  other  produce  of  the  wife's 
earnings.^  He  alone  can  give  a  discharge  for  any  demand 
which  may  arise  from  her  services.  He  may  of  course  con- 
stitute her  his  agent  for  receiving  the  pay  to  herself;  but, 
without  evidence  of  some  such  authority,  the  person  who 
employs  her,  as  a  nurse  for  instance,  cannot  protect  himself 
by  showing  her  separate  receipts.^  For  these  earnings  the 
husband  sues  alone,  and  in  his  own  name.^  He  may  consent 
that  the}^  be  her  own,  but  that  right  rests  upon  his  consent, 
and  raises  other  questions  to  be  considered  hereafter ;  *  nor 
can  that  consent  be  exercised  in  disregard  of  his  existing 
creditors.^  It  follows  that  the  proceeds  of  the  joint  labor  of 
husband  and  wife  belong  at  common  law  to  the  husband ;  as 
where,  for  instance,  thej^  raise  cotton  together.*^ 

§  82.  Wife's  Personal  Property  in  Possession. — Now  to  take 
the  broad  division  of  the  common  law  as  applied  to  all  the 
wife's  personal  property.  First,  as  to  the  wife's  choses  or  per- 
sonals in  possession,  or  corporeal  personal  property.  To  these 
the  husband's  riffht  at  common  law  is  immediate  and  absolute. 
He  may  dispose  of  them  as  he  sees  fit  during  his  life,  whether 
with  or  without  his  wife's  consent ;  he  may  bequeath  them 
by  will  ;  and  after  his  death  such  property  is  regarded  as 
assets  of  his  estate,  the  title  passing  to  his  executors  and 
administrators,  to  the  exclusion  of  the  wife,  though  she  sur- 
vive him." 

If  the  wife's  interest  in  personal  property  be  that  of  a  ten- 
ant in  common,  the  husband  becomes  a  tenant  in  common  in 

1  Bucher  ?;.  Ream,  68  Penn.  St.  421 ;  6  Bovvden  v.  Gray,  49  Miss.  547. 
Hawkins  v.  Providence  R.,  119  Mass.  '  Co.  Litt.  300,  351  h ;  2  Kent  Cora. 
596.  143;  Legg  v.  Legg,  8  Mass.  99;  Lam- 

2  Offley  V.  Clay,  2  Man.  &  Gr.  172;  phir  v.  Creed,  8  Ves.  599;  Winslow  ;•. 
and  see  Glover  v.  Drury  Lane,  2  Cliitt.  Crocker,  17  Me.  29  ;  Bing.  Inf.  &  Gov. 
117;  Russell  v.  Brooks,  7  Pick.  6-5.  208,  cases  cited  by  Am.  ed. ;  Hoskins 
But  see  Starrett  v.  Wynn,  17  S.  &  R.  v.  Miller,  2  Dev.  360 ;  Hyde  v.  Stone, 
130.  9  Cow.  230  ;  Morgan  v.  Thames  Bank, 

3  Gould  V.  Carlton,  55  Me.  511;  14  Conn.  99;  Hawkins  v.  Craig,  6 
McDavid  v.  Adams,  77  111.  155.  Monr.  257  ;  Caffee  v.  Kelly,  1  Busb.  48 ; 

*  See  post,  c.  12,  as  to  wife's  power  Skillman  v.  Skillman,  2  Beasley,  403; 

to  trade,  &c.  Hopkins  v.  Carey,  23  Miss.  54  ;  Crop- 

5  Cramer  v.  Bedford,  2  C.  E.  Green,  sey  v.  McKinney,  30  Barb.  47 ;  Carleton 

367  ;    Postnuptial    Settlements,    post  ;  v.  Lovejoy,  54  Me.  445. 
Glaze  V.  Blake,  56  Ala.  379. 

124 


CHAP,  v.]  wife's    personal   PROPERTY.  §  82 

her  stead.^  So  corporeal  chattels  of  a  female  ward,  in  the 
hands  of  her  guardian,  being  legally  hers  at  the  time  of  mar- 
riage, become  her  husband's,  and  his  marital  riglits  attach  at 
once,  notwithstanding  the  guardian  retains  possession  longer.^ 
The  wife's  vested  remainder  in  personal  estate  goes  to  the 
husband  on  termination  of  the  particular  estate  ;  and  where 
both  husband  and  wife  die  during  the  continuance  of  the 
particular  estate,  the  husband's  representatives,  and  not  the 
wife's,  are  held  to  take  such  remainder.^  But  the  husband 
cannot  be  considered  a  purchaser  by  marriag-e  for  a  valuable 
consideration  against  a  legal  title  admitted  to  be  valid  by  his 
wife  before  marriage.* 

Chattels  bequeathed  to  the  wife,  without  restriction,  pass 
to  the  husband  at  once  like  her  other  things  in  possession.^ 
So  all  her  movables,  such  as  jewels,  household  goods,  furni- 
ture, and  the  like,  also  cash  in  her  hands,  go  to  him  absolutely 
and  at  once,  whether  owned  by  the  wife  at  the  time  of  mar- 
riage or  nominally  vesting  in  her  at  some  period  of  her  cover- 
ture. Whether  money  at  her  banker's  follows  this  same 
principle  may  depend  upon  a  distinction  first  taken  by  Sir 
William  Grant  in  Carr  v.  Carrfi  He  there  says  that  a  bal- 
ance at  a  banker's  is  a  debt  and  not  a  deposit.  But  if  the 
money  were  delivered  to  the  banker  in  a  sealed  bag,  it  would 
then  be  truly  a  depositum.  It  would  then  have  what  is  called 
an  ear-mark  ;  in  other  words,  it  would  be  a  specific  chattel, 
and,  as  such,  would  vest  by  the  marriage  in  the  husband  as 
his  absolute  property.^  Therefore,  should  the  husband  die 
without  recovering  such  specific  chattels  or  goods,  they  would 
belong  to  his  representatives,  and  not  to  the  wife  by  right  of 

1  Hopper   V.    McWhorter,    18    Ala.     Crane  v.  Brice,  7  M.  &  W.  183 ;  Rex  v. 


229.  French,  R.  &  R.  C.  C.  491. 
2  Sallee    v.  Arnold,    ,32    Mo.   532  ;         6  i  Mer.  543,  w. 

Chambers  v.  Perry,  17  Ala.  726 ;  Mc-  ^  Per  Sir  William  Grant  in  Carr  v. 

Daniel  v.  Whitman,  16  Ala.  348  ;  Miller  Carr,  1  Mer.  548  ;  Hill  v.  Foley,  1  Phil. 

V.    Blackburn,    14   Ind.    62.     And   see  404.     Money  deposited  witli  a  banker 

Davis's  Appeal,  fiO  Penn.  St  118.  in  the  usual  way  is  money  lent  to  tlie 

^  Tune  r.  Cooper,  4  Snced,  296.  banker,  with  the  obligation  superadded 

*  Willis  r.  Snelling,  6  Rich.  280  that  it  be  repaid  when  called  for.    Pott 

5  Shirley  v.  Shirley,  9  Paige,  363  ;  v.  Cle?,  11  Jur.  289. 


Newlands  v.  Payntcr,  4  M.  &  C.  408; 


125 


§  83  THE   DOMESTIC   RELATIONS.  [PAET  n. 

survivorship.^  The  true  test  of  the  husband's  title  is  this  : 
whether  the  personal  property  in  question  was  or  was  not 
technically  a  thing  in  possession. 

As  to  the  wife's  personal  apparel,  the  doctrine  oi  parapher- 
nalia will  be  found  to  reserve  to  her  a  needful  right  in  the 
most  delicate  instance  Avhere  controversy  can  arise.  Other- 
wise it  would  appear  that  her  apparel  belongs  to  her  husband 
at  common  law ;  and  he  only  can  sue  others  for  its  loss.^  She 
cannot  sell  or  give  her  clothing  away,  probabl}',  except  by  vir- 
tue of  an  agency;  which  agency,  however,  might  be  readily  in- 
ferred from  circumstances.  But  the  wife's  reasonable  clothing 
belongs  to  the  husband  for  the  wife's  use,  like  her  victuals 
and  other  necessaries,  and  he  must  not  wantonly  deprive  her 
of  it  so  as  to  leave  her  destitute.^ 

§  83.  Wife's  Personalty  in  Action.  —  Secondly.  The  hus- 
band's right  to  his  Avife's  incorporeal  personal  property  —  or 
at  least  to  her  chosen  in  action^  as  they  are  commonly  called 
—  is  qualified.  Marriage  operates,  not  as  an  absolute  gift  of 
such  property,  but  rather  as  a  conditional  gift,  the  condition 
being  that  the  husband  shall  do  some  act,  while  coverture 
lasts,  to  appropriate  the  choses  to  himself.  If  he  happen  to 
die  before  he  lias  done  so,  such  choses,  not  having  been  re- 
duced to  possession,  remain  the  property  of  the  wife,  and  his 
personal  representatives  have  no  title  in  them.*  But  this 
applies  only  to  outstanding  things  in  action  ;  for  some  may 
have  been  reduced  to  possession  by  the  husband  during  his 
lifetime,  and  some  may  not.  If  the  wife  die  before  the  hus- 
band has  reduced  the  chose  to  possession,  he  has  no  title  in  it 
as  husl)and,  but  it  goes,  strictly  speaking,  to  her  administrator 
or  personal  representative,^  though    under  our  statutes  the 

1  Hawkins  v.  Providence  R.,  119  Wife,  36 ;  2  Kent  Cora.  135  e<  se7  ,  and 
Mass.  59G.  cases  cited;   Scawen  v.  Blunt,  7  Vcs. 

2  See  Delano  v.  Blanchard,  52  Vt.  204;  Fleet  i-.  Perrins,  L.  E.  3  Q.  B. 
578;  Hawkins  v.  Providence  R.,  119  536;  Lan^liam  v.  Nenny,  3  Ves.  467; 
Mass.  596.  Tritt    v.   Colwell,    31    Penn.    St.    228 ; 

a  Powes   V.   Marshall,   1   Sid.   172;  Needles   v.  Needles,   7  Ohio   St.  432; 

Macq.   Hus.   &  Wife,   19,  20;  1  Bac.  Burleigh  w.  Coffin,  2  Post.  118. 
Abr.   700,   tit.   Baron   &  Feme,  V. ;  1         ^  Walker  v.  Walker,   41  Ala.  353 ; 

Roper  Hus.  &  Wife,  169  ;  1  Vent.  261.  Fleet  i-.  Perrins.   L.  R.  3  Q.  B.  536; 

*  Co.  Litt.  351  ;   1  Bright   Hus.  &  Scrutton  v.  Pattillo,  L.  R.  19  Eq.  369. 

126 


CHAP,   v.]  wife's   personal  PROPERTY.  §  83 

husband  has  commonly  the  right  both  to  administer  and  in- 
herit a  good  part,  at  least,  of  his  wife's  personal  property, 
and  she  cannot  will  otherwise.^ 

With  respect  to  such  choses  in  action  as  may  accrue  to  the 
wife  solely,  or  to  the  husband  and  wife  jointl}^  during  cover- 
ture, the  same  doctrine  applies.  The  husband  may  disagree 
to  his  wife's  interest  and  make  his  own  absolute  at  any  time 
during  coverture  by  recovering  in  suit  in  his  own  name  or 
otherwise  reducing  them  to  possession.  But  until  such  dis- 
agreement, such  choses  in  action  belong  to  the  wife,  and,  if 
not  reduced  into  possession  by  the  husband,  will  likewise 
survive  to  her.^ 

It  becomes  important,  therefore,  at  common  law,  to  dis- 
tinguish the  wife's  things  in  action  from  her  things  in  posses- 
sion. To  the  class  of  things  in  action  belong  such  property 
as  rests  upon  obligation,  contract,  or  other  security,  for  pay- 
ment ;  and  not  only  rights  presently  vested  and  capable  of 
immediate  reduction  to  possession,  but  those  which  are 
contingent  upon  some  event  or  reversionary  upon  some  prior 
interest.^  Debts  owing  the  wife,  arrears  of  rents,  of  profits, 
and  of  income,  also  outstanding  loans,  are  plainly  choses  in 
action}  Mone}^  due  on  mortgage  is,  before  foreclosure,  a  chose 
in  action,  and  even  though  lent  before  coverture  with  cove- 
nants running  to  the  wife's  heirs  or  executors,  it  must  follow 
the  usual  rule.°  So  are  bonds  and  certificates  of  stock.^ 
Income  of  a  chose  in  action  is  as  much  a  chose  as  the  principal 
itself ;  and  according  to  the  ordinary  rule  the  wife  becomes 
entitled  to  it  by  survivorship.'''     A  devise  of  land  to  be  sold 

1  See,  as  to  dissolution  by  death,  by  the  husband  of  an  infant  wife,  see 
post.  Shanks  v.  Edmondson,  28  Gratt.  804. 

2  Coppin  V.  ,  2  P.  Wms.  497  ;  3  See  Bell  Hus.  &  Wife,  52. 

Day  V.   Padrone,  2  M.   &  S.  396,  n. ;  *  1  Bright  Hus.  &  Wife,  30 ;  Clapp 

Howell  V.  Maine,  3  Lev.  403  ;  Wildraan  v.  Stoughton,  10  Pick.  463. 

V.  Wildman,  9  Ves.  174  ;  1  Bright  Hus.  5  Bell  Hus.  &  Wife,  52;  contra,  Tur- 

&  Wife,  37  ;  2  Kent  Com.  135,  and  cases  ner  v.   Crane,    1   Vern.    170;    Rees  v. 

cited ;  Wilkinson  v.   Charlesworth,  11  Keith,  11  Sim.  388. 

Jur.  644 ;  Standeford  v.  Devol,  21  Ind.  6  Slaymaker  v.  Bank,  10  Penn.  St. 

404.     Reduction   during   the  minority  373;  Wells  u.  Tyler,  5  Post.  340. 

of  an  infant  husband  is  good,  though  ^   Wilkinson  v.  Charlsworth,  11  Jur. 

he    dies    before    majority.      Ware   v.  644. 

Ware,  18  Gratt.  070.    As  to  reduction 

127 


§  84  THE   DOMESTIC    RELATIONS.  [PAET    II. 

and  proceeds  to  be  divided  among  certain  persons,  gives  to 
each  a  chose  in  action.^  Bills  of  exchange  and  promissory 
notes,  unlike  many  choses  in  action  in  being  legally  transfer- 
able by  simple  indorsement,  are  now  considered  choses  in 
actio7i  of  a  peculiar  nature,  though  it  was  formerly  thought 
that  they  vested  absolutely  in  the  husband  by  marriage  ;  ^ 
and  bank  checks,  certificates  of  deposit,^  and  public  securities 
of  a  negotiable  character,^  may  be  placed  in  the  same  class. 
Legacies  and  distributive  shares  are  sometimes  treated  as 
though  they  vested  absolutely  in  the  husband  without  reduc- 
tion into  possession ;  but  unquestionably  the  better  opinion 
is  that  they  are  choses  in  action  (especially  if  no  decree  of  dis- 
tribution has  been  rendered,  or  the  estate  is  unsettled),  in 
which  case  the  creditor  of  the  husband  ought  not  to  be 
allowed  to  attach  them  before  the  latter  has  done  some  act 
disaffirming  his  wife's  title.^  The  wife's  choses  in  action  must 
not  be  confounded  with  her  goods  or  specific  chattels  in  the 
hands  of  third  parties,  which,  unlike  her  choses  in  action,  vest 
in  the  husband  absolutely  by  the  marriage.®  Money  rights 
or  claims  generally,  as  for  instance  a  claim  for  damages  grow- 
ing out  of  a  tort  committed  upon  the  person  or  character  of 
the  wife,  fall  under  our  present  head.' 

§  84.  Wife's  Personalty  in  Action ;  Reduction  into  Possession. 
—  What  acts  on  the  husband's  part  amount  to  an  appropri- 
ation of  his  wife's  choses  in  action,  or,  in  other  words,  consti- 
tute reduction   into    possession   so  as  to  bar  her  rights  by 

1  Smilie's  Estate,  22  Penn.  St.  180.  1  Vern.  261.     But  even  in  Massachu- 

2  Gaters  v.  Jladdeley,  6  M.  &  W.  setts,  wlicre  the  doctrine  prevails  which 
423;  Nash  r.  Nash,  2'Madd.  133;  1  is  disapproved  in  the  text,  it  is  held 
Roper  Hus.  &  Wife,  211  ;  1  Briglit  Hus.  that  if  the  husband  die  before  judg- 
&  Wife,  37  o,  38;  9  Jur.  827;  Phelps  ment  in  the  suit  by  creditors, -liis  wife's 
r.  Phelps  20  Pick.  5'6  ;  Lenderman  v.  survivorship  is  not  barred.  Strong  v. 
Talley,  1  Houst.  523.  Smith,  1  Met.  47G.     See  Parks  v.  Cush- 

3  rjodgers  v.  Pike  County  Bank,  60  man,  9  Vt.  320,  which  allows  the  wife's 
Mo.  500.  share  to  be  attached  in  trustee  process 

*   Such,    for    instance,    as    United  by  the  husband's  creditors  after  a  de- 
States  bonds.    Brown  u.  Bokee,  53  Md.  'jree  of  distribution. 
155.  •■'  See  snpra,  §  82  ;    1   Schoul.  Pers. 

5  2  Kent  Com.  135  ;  Schoul.  Hus.  &  Prop.  .32-37. 
Wife,  §  1-50  and  cases  cited  ;  Carr  v.         '•  Anderson  v.  Anderson,  11  Bush, 

Taylor,  10  Ves.  Jr.  574,  518 ;  Lamphir  827. 
V.  Creed,  8  ib.  509 ;  Palmer  v.  Trevor, 

128 


CHAP,  v.]  wife's  personal  peopeety.  §  84 

survivorship,  is  a  doctrine  of  common  law  of  much  impor- 
tance. Mere  intention  on  his  part  to  appropriate  is  not 
sufficient.  The  purpose  must  be  followed  by  some  positive 
act  asserting  an  ownership.^  Nor  is  actual  possession  of  the 
chose  in  action  a  sufficient  reduction  per  se,  for  the  husband's 
intention  may  be  to  hold  it  in  tlie  right  of  another.  Thus  he 
may  take  the  property  in  trust  for  his  wife  ;  and  if  so,  he  is 
accountable  like  any  other  trustee;^  So  he  may  receive  it  as 
a  loan  from  his  wife,  in  which  case  he  shall  refund  it  like  any 
other  borrower.  That  reduction  into  possession  which  makes 
the  cJiose  absolutely  as  well  as  potentially  the  husband's,  is  a 
reduction  into  possession,  not  of  the  thing  itself,  but  of  the 
title  to  it.3  Constructive  possessions  are  not  favored  in  law 
when  they  tend  to  defeat  the  wife's  survivorship.  Yet  re- 
duction into  possession  of  the  wife's  chose  in  action,  un- 
explained by  other  circumstances,  is  ijrima  facie  evidence  of 
conversion  to  the  husband's  use,  and  is  therefore  effectual.* 
And  reduction  of  a  fund  may  be  sufficient  upon  the  happen- 
ing of  a  condition  annexed  to  it.^ 

The  doctrine  of  reduction  into  possession  offers  many  very 
nice  distinctions,  involving  conflicting  rights  of  considerable 
magnitude.  Courts  of  equity,  which  have  taken  this  subject 
under  their  especial  control,  seem  to  lay  down  variable  rules  ; 
and  it  must  be  confessed  that  the  law  of  reduction  is  so  built 
upon  exceptions,  that  one  may  more  readily  determine  what 
acts  of  the  husband  do  not,  than  what  acts  do,  bar  the  wife's 
survivorship.  Another  difficulty  in  dealing  with  this  subject 
appears  from  the  circumstance  that  personal  property  is 
rapidly  growing,  and  species  of  the  incorporeal  sort  are  de- 
veloped quite  unknown  to  the  old  common  law ;  while,  on 
the  other  hand,  the  doctrine  of  the  wife's  separate  estate, 
under  the  influence  of  equity  and  modern  legislation,  has 
expanded  so  fast  as  to  furnish  already  new  elements  of  con- 

1  Blount  i'.  Bestland,  5  Ves.  Jr.  615.  3  Strong,   J.,  in    Tritt's  Admr.    v. 

2  Baker  v.   Hall,   12  Ves.  Jr.   497 ;  Caldwell's  Admr.,  31  Penn   St.  233. 
Estate  of  Hinds,  5  Wliart.  1.38  ;  May-         *  Johnston  v.  Johnston,  1  Grant  Cas. 
field  V.  Clifton,  3  Stew.  375;  Resor  y.  468. 

Resor,  9  Ind.  347  ;  Bell  Hus.  &  Wife,         6  Dunn  v.  Sargent,  101  Mass.  336. 
67. 

9  129 


§  85  THE   DOMESTIC   EELATIONS.  [PART   II. 

sideration  for  most  of  the  latest  reduction  cases,  threatening 
to  extinguish  at  no  distant  day  all  the  old  learning  ou  the 
subject,  even  before  its  leading  principles  could  be  clearly- 
shaped  out  in  the  courts.^ 

§  85.  Wife's  Personalty  in  Action  ;  Wife's  Equity  to  a  Settle- 
ment. —  The  wife's  equity  to  a  settlement,  which  constitutes 
an  important  branch  of  the  English  chancery  jurisprudence,  is 
closely  connected  with  the  husband's  right  of  reduction  into 
possession.  Whenever  the  husband  or  his  representative  has 
to  seek  the  aid  of  a  court  of  chancery  in  order  to  recover  his 
wife's  property,  he  must  submit  to  its  order  of  a  suitable  set- 
tlement from  the  fund.  This  settlement,  which  is  made  npon 
the  wife  for  the  separate  benefit  of  herself  and  the  children 
as  a  provision  for  their  maintenance  and  comfort,  is  known 
as  the  wife's  equity .^  Thus  chancery,  by  a  stretch  of  power 
somewhat  arbitrary,  interferes  to  do  an  act  of  justice.  The 
doctrine  seems  to  rest  upon  two  grounds  :  first,  that  whoever 
comes  into  equity  must  do  equity  ;  second,  that  chancery  is 
the  special  champion  of  women  and  children.^ 

The  smallness  of  a  fund  is  no  bar  to  the  settlement,*  The 
court  exercises  a  liberal  discretion  in  making  an  award  to 
wife  and  children,  even  to  the  disadvantage  of  an  insolvent 
husband's  creditors.^  But  the  right  to  claim  it  is  personal  to 
the  wife,  may  be  barred  or  waived  because  of  her  acts  or  mis- 
conduct, and  applies  only  to  funds  which  have  fallen  into 
possession,  or  are  not  merely  reversionary.*^ 


1  Tliis  doctrine  of  reduction  into  Peachey  Mar.  Settl.  158,  159.  This 
possession  is  set  forth  at  length  in  jurisdiction  appears  to  have  been  exer- 
Schoul.  Hus.  &  Wife,  §§  154-159,  with  cised  from  tlie  earliest  period.  Sturgis 
numerous  cases  cited.  v.  Champneys,  5  M.  &  C.  103,  per  Lord 

2  2  Kent  Com.  139-14.3,  and  cases  Chancellor  Cottenham.  For  the  doc- 
cited ;  1  Bright  Hus  &  Wife,  2:>0-'265 ;  trine  of  the  wife's  equity  to  a  settle- 
2  Story  Eq.  Juris.  §  635  Various  acts  ment  in  detail,  which  also  gives  rise  to 
suffice,  conclusive  of  the  husband's  in-  nice  distinctions,  see  Schoul.  Hus.  & 
tention.      //;.  §§   154-156.      Peduciion  Wife,  §§  160-162. 

into  possession  by  assignment  affords  *  Schoul.  Hus.  &  Wife,  §  IGl. 

ninny   perplexing  points.      lb.   §   157.  5  //,.  §  igi. 

The  husband's  right  to  reduce  is  one  '^  lb.  §§  161,  162.     An  adequate  set- 

of  election.     /6  §  156.     There  may  be  tlement  on  the  wife  may  bar  her  equity, 

reduction  by  suit.     lb.  §  158.  lb.  §  162. 
8  Meals    V.    Meals,    1    Dick.   373 ; 

130 


CHAP,  v.]  wife's    personal   PROPERTY.  §  86 

* 

The  wife's  right  of  equity  to  a  settlement  is  something  dis- 
tinct from  her  right  of  survivorship  ;  that  is,  her  right  upon 
her  husband's  death  to  property  not  reduced  by  him  ;  ^  and 
even  if  the  husband  has  assigned  the  fund,  the  court  will 
protect  such  equity  upon  due  application.^  The  husband's 
assignee  for  valuable  consideration  takes  subject  to  the  wife's 
equity,  although  her  survivorship  may  have  been  barred  by 
the  assignment  ;^  but  the  wife's  antenuptial  debts  must  first 
be  provided  for.* 

§  86.  Personal  Property  held  by  Wife  as  Fiduciary  ;  Wife  as 
Executrix,  ike. —  Property  held  by  the  wife  in  a  representative 
capacity  at  the  time  of  marriage  cannot  vest  in  the  husband  ; 
for  here  she  has  no  beneficial  interest  which  the  law  can 
transfer  to  her  husband.^  Any  other  rule  would  operate  a 
fraud  upon  creditors  and  cestuis  que  trust.  But  if  the  wife  be 
executrix  or  administratrix  at  the  time  of  her  marriage,  the 
husband  is  entitled  to  administer  in  her  right,  by  way  of  par- 
tial offset  to  his  liability  for  her  frauds  and  injuries  in  such 
capacity.  As  incidental  to  this  authority,  he  may  release  and 
compound  debts,  and  dispose  of  the  effects,  and  reduce  out- 
standing trust  property  into  possession,  as  his  wife  might  have 
done  before  coverture.^  He  is  accountable  for  all  property 
which  came  to  her  possession,  whether  actually  received  by 
him  or  not.'^  A  married  woman  cannot  become  executrix  or 
administratrix  without  her  husband's  concurrence ;  so  long, 
at  least,  as  he  remains  liable  for  her  acts ;  ^  nor  will  payments 

1  Norris  v.  Lantz,  18  Md.  260;  Hall  ^  /j. .  Jenk.  Rep.  79;  Woodruffe  v. 
i;.  Hall,  4  Md.  Cli.  283.  Cox,    2    Bradf.    Sur.    153;  Keistcr   v. 

2  Osborne  u.  Edwards,  3  Stock.  73.       Howe,    3    Ind.    2G8  ;  Claussen    v.   La 
8  Moore  v.  Moore,  14  B.  Monr.  259  ;     Franz,  1  Iowa,  220  ;  Dardier  v.  Cliap- 

2  Story  Eq.  Juris.  §  1412,  and  cases  man,  L.  R.  11  Cli.  D.  442.  And  may- 
cited.  In  McCaleb  v.  Crichfield,  5  foreclose  a  mortgage  with  his  co-execu- 
Heisk.  288,  the  assignee  was  held  en-  trix.  Buck  v.  Fischer,  2  Col.  T.  709. 
titled  to  the  residuary  interest  under  a  '^  Scott  v.  Gamble,  1  Stockt  218. 
will  assigned  by  husband  and  wife  For  a  case  in  which  the  husband  put 
jointl3%  no  proceedings  having  been  money  of  his  own  into  a  bank  where 
set  on  foot  by  the  latter  during  her  life  tlie  wife  had  an  account  as  executrix, 
to  avoid  the  assignment  or  enforce  her  see  Lloyd  v.  Pughe,  L.  R.  8  Ch.  88. 
equity.  **  Administration  has  been  granted 
*  Barnard  v.  Ford,  L.  R.  4  Ch.  247.  to  a  wife  living  apart  from  her  husband 
5  Co.  Lift.  3-51;  11  Mod.  178;  1  under  a  deed  of  separation  with  apt  pro- 
Bright  Has.  &  Wife,  39,  40.  visions.  Goods  of  llardinge,  2  Curt.  040. 

131 


§  87  THE   DOMESTIC    RELATIONS.  [PAET   U. 

made  to  her  in  such  capacity  without  his  assent  be  valid.^  It 
is  to  be  generally  observed  in  cases  of  this  kind  that  the  right 
of  disposition  which  the  husband  exercises  is  strictly  the  right 
of  performing  the  trust  vested  in  his  wife,  it  being  assumed 
that  she  cannot  perform  it  consistently  with  her  situation  as  a 
feme  covert.  His  position  is  a  fiduciary  one,  so  tliat  lie  cannot 
purchase  from  a  coadministratrix  without  consent  of  all  ben- 
eficiaries in  interest.''^ 

Qy  marriage  with  a  female  guardian,  too,  the  husband  be- 
comes responsible  for  the  mone3'S  with  which  she  may  then  or 
afterwards  during  coverture  be  chargeable  in  such  capacity; 
the  responsibility  extending  while  she  continues  to  act, 
whether  it  were  proper  for  her  to  so  continue  or  not.^ 


CHAPTER   VI. 


EFFECT   OF   COVERTURE   UPON   THE   WIFE's    CHATTELS   REAL 
AND  REAL   ESTATE. 

§  87.  Husband's  Interest  in  Wife's  Chattels  Real,  Leases,  &c. 
—  Chattels  real,  such  as  leases  and  terms  for  years,  have  many 
of  the  incidents  of  personal  property.  But  as  between  hus- 
band and  wife  they  differ  from  personal  chattels.  The  title 
acquired  therein  by  the  husband  is  of  a  somewhat  anomalous 

1  \  Salk.   282;    Lover   v.   Lover,   6  where  wife  is  executrix,  see  also  post, 

Jur.    15(3 ;  Bubbers  v.  Hardy,  3  Curt.  §  87. 

50 ;  cases  cited  in  2  lledf.  Wills,  78.  -  Pcpperell  v.  Chamberlain,  27  W, 
As  to  the  indorsement  of  a  note  pay-  R.  410.  An  administrator  cannot  sue 
able  to  the  wife  as  administratrix,  see  in  his  representative  character  upon 
Roberts  v.  Place,  18  N.  H.  183.  And  contracts  made  after  the  death  of  the 
see  Murphree  v.  Singleton,  37  Ala.  412.  intestate  merely  in  the  course  of  carry- 
Statutes  sometimes  require  the  husband  ing  on  the  intestate's  business.  Hence 
to  join  in  the  wife's  bond  as  executri.K,  the  husband  must  sue  alone  for  goods 
and  otherwise  vary  tlie  rule  of  the  text,  supplied  by  husband  and  wife  in  car- 
See  Schoul.  Hus.  &  Wife,  Appendix,  rying  on  the  business  of  tlie  wife's 
See  Airhart  v.  Murphy,  32  Tex.  131  ;  father,  whose  administratrix  the  wife 
Cassedy  v.  Jackson,  45  Miss.  397.  was ;  and  the  joinder  of  the  wife  is 
Wife  made  sole  executrix  with  her  improper.  Bolingbroke  v.  Kerr,  L.  R. 
husband's  consent.  In  re  Stewart,  56  1  Ex.  222. 
Me.  300.    As  to  effect  on  chattels  real        ^  Allen  v.  McCuUough,  2  Heisk.  174. 

132 


CHAP.  VI.]  wife's  chattels  keal,  &c.  §  87 

nature  ;  for  upon  them  marriage  operates  an  executory  gift, 
as  it  were,  tlie  husband's  title  being  imperfect  unless  he  does 
some  act  to  appropriate  them  before  the  wife's  death.  He 
may  sell,  assign,  mortgage,  or  otherwise  dispose  of  his  wife's 
chattels  real  without  her  consent  or  concurrence ;  ^  excepting 
always  such  property  as  she  may  hold  by  way  of  settlement 
or  otherwise  as  her  separate  estate.^  Chattels  real,  unappro- 
priated during  coverture,  vest  in  the  wife  absolutely,  if  she 
be  the  survivor.  In  all  these  respects  they  resemble  choses  in 
action.  But  if  tlie  husband  be  the  survivor,  such  chattels  will 
belong  to  him  jure  mariti,  and  not  as  representing  his  wife. 
And  in  this  respect  they  resemble    cJioses  in  possession. 

As  to  the  wife's  chattels  real,  therefore,  husband  and  wife 
are  in  possession  during  coverture  by  a  kind  of  joint  tenancy, 
with  the  right  of  survivorship  each  to  the  other ;  not,  how- 
ever, like  joint  tenants  in  general,  but  rather  under  the  title 
of  husband  and  wife  ;  since  husband  and  wife  are,  in  contem- 
plation of  law,  but  one  person,  and  incapable  of  holding  either 
as  joint  tenants  or  tenants  in  common.^ 

The  wife's  chattels  real  may  be  taken  on  execution  for  the 
debts  of  the  husband  while  coverture  lasts,  by  which  means 
the  title  becomes  transferred  by  operation  of  law  to  the  cred- 
itor, and  the  wife's  right,  even  though  she  should  survive  her 
husband,  is  gone.^  They  may  also  be  bequeathed  by  the  hus- 
band by  will  executed  during  marriage,  or  by  other  instru- 
ment to  take  effect  after  his  death ;  with,  however,  this 
result;  that  if  the  wife  dies  first  the  bequest  will  be  effectual, 
not  having  been  subsequently  revoked  by  the  husband  ; 
while,  if  the  husband  dies  first,  the  wife  will  take  the  chattel 
in  her  own  right,  unaffected  by  any  will  which  he  may  have 
made,  or  by  any  charge  he  may  have  created.^ 

1  Co.  Litt.  46  c  ,•  2  Kent  Com.  134  ;  3  2  Kent  Com.  135 ;  Co.  Litt.  351  b  ; 
Sir  Edward  Turner's  Case,  1  Vern.  7  ;  Butler's  note  304  to  Co.  Litt.  lib.  3, 
Whitmarsh  v.  Robertson,  1  Coll.  New     351  a. 

Cases,  570.   As  to  what  are  chattels  real,  *  2  Kent  Com.  134  ;  Miller  v.  Wil- 

see  1  Sellout.  Ters.  Prop.  29,  45-73.  liams,  1  P.  Wms.  258. 

2  Tullett  V.  Armstrong,  4  M.  &  C.  ^  Co.  Litt.  351  a,  466;  Roberts  v. 
395;  Draper's  Case,  2  Freem.  29;  Bui-  Polgrean,  1  H.  Bl.  535. 

lock  V.  Knight,  Ch.  Ca.  266. 

133 


§  87  THE   DOMESTIC   RELATIONS.  [PART  II. 

It  would  appear  that  any  assignment  of  a  chattel  real  by 
the  husband  will  completely  appropriate  it,  even  though  made 
without  consideration.^  And  if  a  single  woman  has  a  decree 
to  hold  and  enjoy  lands  until  a  debt  due  her  has  been  paid, 
—  known  at  the  old  law  as  an  estate  by  elegit^ — and  she 
afterwards  marries,  her  husband  ma}?^  make  a  voluntary  as- 
signment so  as  to  bind  her.^  The  right  of  appropriating  the 
wife's  chattels  real  is,  therefore,  to  be  distinguished  from  the 
right  of  reducing  things  in  action  into  possession.  The  hus- 
band's interest  in  his  wife's  chattels  real  may  be  called  an 
interest  in  his  wife's  right,  with  a  power  of  alienation  during 
coverture ;  and  an  interest  in  possession,  since  such  chattels 
are  already  in  possession,  but  lying  in  action.^  As  the  hus- 
band is  entitled  to  administer  in  his  wife's  right  when  she  is 
executrix  or  administratrix,  he  may  release  or  assign  terms 
for  years  or  other  chattels  real  vested  in  her  as  such.^  But  if 
he  be  entitled  to  a  term  of  years  in  his  wife's  right  as  ex- 
ecutrix or  administratrix,  and  have  the  reversion  in  fee  in 
himself,  the  term  \\\\l  not  be  merged  ;  for,  to  constitute  a 
merger,  both  the  term  and  the  freehold  should  vest  in  a  per- 
son in  one  and  the  same  right.^ 

An  exception  to  the  husband's  right  by  survivorship  to  his 
wife's  chattels  real  occurs  in  case  of  joint  tenancy.  If  a  single 
woman  be  joint  tenant  with  another,  then  marries  and  dies, 
the  other  joint  tenant  takes  to  the  exclusion  of  her  husband 
surviving  her ;  for  the  husband's  title  is  the  newer  and 
inferior   one.^ 

When  the  husband  succeeds  to  his  wife's  chattels  real  upon 
surviving  her,  or  appropriates  it  during  coverture,  he  takes  it 
subject  to  all  the  equities  which  would  have  attached  against 
her.     In  other  words,  being  not  a  purchaser  for  a  valuable 

1  Caterpt  v.  Paschall,  3  P.  Wms.  5  Co.  Litt.  338?-;  1  Bright  Hus.  & 
200.     But    see    note    to    1    P.    Wms.     Wife,  and  cases  cited. 

880.  6  Co.   Litt.   185  h.      Wliere,   during 

2  Merriwoatlier  v.  Brooker,  .5  Litt.  coverture,  a  lease  for  3'cars  is  granted 
256  ;  Pascliall  v.  Tliurston,  2  Bro.  P.  C.  to  tlie  wife,  ailverse  possession,  vvliich 
10.  conimences  during  coverture,  may  be 

3  Mitford  V.  Mitford,  9  Ves.  98.  treated  as  adverse  eitlier  to  tlie  wife  or 
*  Arnold  r.  Bidwond,  Cro.  , Lac.  318;     to   tlie   hiisliand.      Uoe   v.  Wilkins,   5 

Thrustout  1-.  Coppin,  W.  Bl.  801.  Kev.  &  M.  435. 

134 


CHAP.  VI.]  wife's   chattels   REAL,  &C.  §  88 

consideration,  he  can  claim  no  greater  interest  than  she  had. 
Thus,  where  the  wife's  chattel  interest  is  subject  to  the  pay- 
ment of  an  annuity,  the  husband  must  continue  to  make 
payment  so  long  as  the  mcumbrance  lasts.  And  though  he 
may  not  in  all  cases  be  bound  on  her  covenant  to  make  new 
leases,  yet,  if  he  does  so,  the  equity  of  the  annuitant  will 
attach  upon  them  successively.^ 

§  88.  Wife's  Chattels  Real  ;  Leases,  &c. ;  Subject  continued. 
—  The  law  enables  the  husband  during  coverture  to  defeat 
his  wife's  interest  by  survivorship  by  an  absolute  alienation 
or  disposition  of  the  whole  term,  either  with  or  without  con- 
sideration.^ And  the  same  rule  applies  to  the  wife's  trust 
terms  as  to  her  legal  terins.^  In  order  to  make  it  effectual, 
the  right  of  the  party  in  whose  favor  the  disposition  is  made 
must  commence  in  interest  during  the  life  of  the  husband  ; 
but  it  is  not  necessary  that  it  should  commence  in  posses- 
sion during  that  period.  Thus  the  husband,  though  he 
cannot  bequeath  these  chattels  by  will,  as  against  the  wife's 
right  by  survivorship,  may  grant  an  underlease  for  a  term 
not  to  commence  until  after  his  death  ,  and  this  act  will 
divest  the  right  of  the  wife  under  the  original  lease  so  far 
as  the  underlease  is  prejudicial  to  such  right.^  Nor  need 
his  disposition  cover  the  whole  chattel,  since  the  disposition 
necessarily  operates  pro  tanto^  Nor  need  it  be  absolute, 
since  a  conditional  disposition  is  good  if  the  condition  sub- 
sequently takes  effect.^  And  the  law  enables  the  husband 
to  dispose  not  only  of  the  wife's  interest  in  possession, 
but  also  of  her  possibility  or  contingent  interest  in  a  term, 
unless  where  the  contingency  is  of  such  a  nature  that  it 
cannot  happen  during  his  life.'^     A  distinction  is,  however, 

i  Moody  V.  Matthews,  7  Ves.  183  ;  Turner's  Case,  1  Ch.  Ca.  307  ;  Packer 

Rowe  V.  Ciiichester,  Amb.  719.    On  the  v.  Windham,  Prec.  in  Ch.  412. 
question  of  contribution  by  annuitants,  *  Grute  ?'.  Locroft,  Cro.  Eliz.  287  ; 

see  Winslowe  v.  Tighe,  2  Ball  &  B.  201 ;  Bell  Hus.  &  Wife,  104,  105. 
Hubbs  V.  Rath,  2  il>.  553.  5  Sym's  Case,  Cro.  Eliz.  33 ;  Loft- 

2  1  Bright  Hus.  &  AVife,  98;  Grute  ris's  Case,  ih.  276;  Riley  v.  Riley,  4  C. 

V.  Locroft,  Cro.  Eliz.  287  ;  Jackson  v.  E.  Green,  220. 
McConnell,  19  Wend.  175.  6  Co.  Litt.  46  6.    But  see  4  Vin.  Abr. 

8  Tudor  V.  Samyne,  2  Vern.  270  (in-  50,  pi.  14. 
correctly  reported,  according  to  note,  1  ^  Doe  d.  Shaw  v.  Steward,  1  Ad.  & 

Bright  kus.  &  Wife,  99) ;  Sir  Edward  El.  300;    1  Bright  Hus.  &  Wife,  100. 

135 


§  88  THE   DOMESTIC   RELATIONS.  [PART   n. 

made  between  cases  where  the  disposition  is  intended  of  the 
whole  or  of  part  of  the  property,  and  where  it  is  intended  as 
a  collateral  grant  of  something  out  of  it.  In  the  latter  case 
the  transaction  will  not  bind  the  wife  ;  for  if  she  survive  her 
husband,  her  right  being  paramount,  and  her  interest  in  the 
chattel  not  having  been  displaced,  she  will  be  entitled  to  it 
absolutely  free  from  such  incumbrance.^ 

The  husband  may  b}^  other  acts  than  express  alienation 
divest  his  wife's  title,  and  defeat  her  rights  by  survivorship 
in  her  chattels  real.  Thus,  if  the  husband,  holding  a  term  in 
right  of  his  wife,  grant  a  lease  of  the  lands  covered  by  the 
term,  for  the  lives  of  himself  and  his  wife,  the  wife's  term 
will  thereby  merge,  and  her  right  in  it  be  defeated.^  Or  if, 
while  in  possession,  under  a  lease  to  himself  and  the  wife,  the 
husband  should  accept  from  the  lessor  a  feoffment  of  the 
lands  leased,  the  term  would  be  extinguished  and  the  wife's 
right  along  with  it,  for  the  livery  would  amount  to  a  sur- 
render of  the  term.2 

On  the  other  hand,  there  are  acts  by  the  husband,  which, 
although  they  amount  to  the  exercise  of  an  act  of  ownership, 
yet,  as  they  do  not  pass  the  title,  will  not  defeat  the  wife's 
right  by  survivorship.  An  instance  of  the  latter  is  that  of 
the  husband's  mortgage  of  his  wife's  chattels  real ;  or,  what 
is  the  same  thing  in  equity,  a  covenant  to  mortgage.  This  is 
in  reality  a  disposition  as  security,  and  until  breach  of  con- 
dition tlie  mortsfagee  has  no  further  title.  But,  in  order  to 
protect  the  mortgagee's  rights,  equity  treats  the  mortgage  or 
covenant  as  good  against  the  wife  to  the  extent  of  the  money 
borrowed  ;  that  once  paid,  tlie  chattels  will  continue  hers.* 
After  breach  of  condition,  the  mortgagee's  estate  becomes 
absolute  ;  or,  at  least,  he  can  make  it  so  by  foreclosure  ;  and 
the  alienation  of  the  term  being  then  completed  at  law,  the 
wife's  legal  right  by  survivorship  is  defeated  ;  subject,  how- 

And  see  Donne  v.  Hart,  2  Iluss.  &  My.  912.     And  see  Lawes  v.  Lumpkin,  18 

360.  Md.  334. 

1  Co.  Litt.  184  6;  1  Bright  Hus.  &  *  Bates  v.  Dandy,  2  Atk.  207;  Bell 
Wife,  103.  Hus.  &  Wife,  107 ;  1  Bright   Hus.  & 

2  2  Roll.  Abr.  495,  pi.  50.  Wife,  106. 

3  Downing  v.  Seymour,  Cro.   Eliz. 

136 


CHAP.  VI.]  wife's   real   ESTATE,    ETC. 


§  89 


ever,  to  the  equity  of  redemption,  where  the  hushcand  has  not 
otherwise  disposed  of  that  likewise.^  So,  too,  transactions, 
not  constituting  mortgages  in  the  ordinary  sense  of  the  term, 
may  yet  be  so  construed  in  equity  where  such  was  their  sub- 
stantial purport.  And  while  the  intention  of  the  husband  to 
work  a  more  complete  appropriation  will  be  justly  regarded 
by  the  court,  the  mere  circumstance  of  a  proviso  in  the  con- 
vej'ance  for  redemption,  pointing  to  a  mode  of  reconveyance 
not  in  conformity  with  the  original  title,  will  not,  it  seems, 
debar  the  wife  from  asserting  her  rights  by  survivorship.^ 

§  89.  Wife's  Real  Estate ;  Husband's  Interest.  —  Now,  as  to 
the  effect  of  coverture  on  the  wife's  real  estate.  By  mar- 
riage, the  husband  becomes  entitled  to  the  usufruct  of  all 
real  estate  owned  by  the  wife  at  the  time  of  her  marriage, 
and  of  all  such  as  may  come  to  her  during  coverture.  He 
is  entitled  to  the  rents  and  profits  during  coverture.  His  es- 
tate is  therefore  a  freehold.  But  it  will  depend  upon  the 
birth  of  a  child  alive  during  coverture,  whether  his  estate 
shall  last  for  a  longer  term  than  the  j(jint  lives  of  himself  and 


1  See  Pitt  V.  Pitt,  T.  &  R.  180;  1 
Prest.  on  Estates,  345. 

2  Clark  V.  Burgh,  0  Jur.  679.  And 
see  In  re  Betton's  Trust  Estates,  L.  R. 
12  Eq.  553 ;  Pigott  v.  Pigott,  L.  11.  4 
Eq.  549.  As  to  tl:e  wife's  equity  for  a 
settlement,  however,  it  is  held  that 
where  a  husband  mortgages  the  legal 
interest  in  a  term  of  years  belonging  to 
him  In  right  of  his  wife,  no  such  equity 
arises  on  a  claim  to  foreclose  this  mort- 
gage against  the  husband  and  wife  as 
defendants.  Hill  v.  Edmonds,  15  E.  L. 
&  Eq.  280. 

Among  the  miscellaneous  acts  of 
the  husband,  whicii  will  defeat  the 
wife's  survivorship  to  her  chattels  real, 
are  the  following  :  A  disseverance  of 
his  wife's  joint  tenancy  during  cover- 
ture. Co.  Litt.  185  b  ;  Plow.  Com.  418. 
An  award  of  the  term  to  the  husband, 
if  carried  into  effect.  Oglander  v.  Bas- 
ton,  1  Vern.  396 ;  note  of  Jacob  to  1 
Roper  Hus.  &,  Wife,  185,  and  cases  com- 
mented upon.    The  husband's  criminal 


acts  ;  such  as  attainder.  Co.  Inst.  351  a; 
4  Bl.  Com.  387;  Steed  v.  Cragh,  9 
Mod.  43.  So,  too,  his  alienage.  2  Bl. 
Com.  421  ;  4  Bl.  Com.  387.  See  post 
§  89.  Lord  Coke  considered  that 
ejectment  recovered  by  the  husband  in 
his  own  name  would  work  appropri- 
ation ;  but  he  was  probably  in  error. 
See  Jacob's  note  to  1  Roper  Hus.  & 
Wife,  185;  Co.  Litt.  46  6;  4  Vin.  Abr. 
50,  pi.  18.  Waste  operates  as  a  for- 
feiture of  a  term.  Co.  Litt.  .351.  And 
finally,  the  husband's  creditors  may 
sell  the  wife's  chattels  real  on  execu- 
tion, and  by  their  own  act  determine 
her  interest  altogether.  Miles  v.  Wil- 
liams, 1  P.  Wms.  258 ;  Co.  Litt.  351. 
But  it  is  held  that  the  wife's  survivor- 
ship is  not  defeated  by  such  acts  of  her 
husband  as  erecting  buildings  on  the 
leasehold  premises  ;  and  making  a 
mortgage,  sale,  or  lease  of  part  bars 
the  wife  only  so  far.  Riley  v,  Riley,  4 
C.  E.  Green,  229. 

137 


§  89  THE   DOMESTIC   RELATIONS.  [PART   II, 

wife,  or  not ;  that  is  to  say,  whether  he  acquires  the  right  of 
curtesy  initiate,  to  be  consummaled  on  the  death  of  the  wife 
leaving  him  surviving.^  In  the  event  of  such  birth,  his  interest 
hists  for  his  own  life,  whether  his  wife  dies  before  him  or 
not.  If  there  be  no  child  born  alive,  his  interest  lasts  only  so 
long  as  his  wife  lives.  In  either  ease,  he  has  not  an  absolute 
interest,  but  only  an  estate  for  life,  and  his  right  is  that  of 
beneficial  enjoyment.  When  his  estate  has  expired,  the  real 
estate  vests  absolutely  in  the  wife  or  her  heirs,  and  the  hus- 
band's relatives  have  no  further  concern  with  it.^ 

While,  therefore,  the  husband  lias  the  benefieial  enjoyment 
of  his  wife's  freehold  property  during  coverture,  at  the  com- 
mon law,  tlie  ownership  remains  in  the  wife.  Herein,  her 
right  becomes  suspended,  not  extinguished,  by  her  marriage. 
The  inheritance  is  in  her  and  her  heirs. 

Consequently,  the  husband  may  collect  and  dispose  of  the 
rents.  He  may  also  sue  in  his  own  name  for  injury  to  the 
profits  of  his  wife's  real  estate  ;  as  where  growing  crops  are 
destroyed  or  carried  off;  for  this  relates  to  his  usufructuary 
interest.  But  for  injuries  to  the  inheritance,  such  as  trespass, 
by  cutting  trees,  burning  fences,  and  pulling  down  houses, 
and  generally  in  actions  for  waste,  the  wife  must  be  joined ; 
and  if  the  husband  dies  before  recovering  damages,  the  right 
of  action  survives  to  the  wife.  And  if  the  wife  survives  her 
husband,  she  may  commence  such  suits  without  joining  his 
personal  representatives.^  But  the  husband  cannot  prosecute 
such  an  action  alone  after  his  wife's  death  during  the  pen- 
dency of  the  suit.*  Husband  and  wife  are  properly  joined  as 
plaintiffs  in  a  bill  to  protect  and  secure  the  permanent  rights 
and  interests  to  her  real  estate.^ 

1  See  post,  Dissolvation  by  Death,  as  after,  to  his   wife's   separate  real  es- 

to  Curtesy.  tate. 

^  Co.  Litt.  .351  a  ;  2  Kent  Com.  130 ;         3  2  Kent  Com,  131 ;  Wcller  v.  Baker, 

1  Bac.  Abr.  286  ;  .Junction  Railroad  Co.  2   Wils.  423,  424;    Beaver  v.  Lane,  2 

V.  Harris,  9  Ind.  184 ;  Chirke's  Appeal,  Mod.  217  ;  Bae.  Abr.  tit.  Baron  &  Feme, 

79  Penn.  St.  376;  Rogers  v.  Brooks,  30  K. ;  1  Chit.  Pi.  (Gth  Am.  ed.)  85;  1  Bl. 

Ark.  612.     The  husband's  rights  and  Com.  362;    Illinois,    &c.   R.  R.   Co.  v. 

liabilities  attach  to  property  bought  by  Grable,  46  III.  445  ;  Thacher  v.  Phin- 

himself  and  held  in  his  name  as  trustee  ney,  7  Allen,  146. 
for  his  wife.     Pharis  v.  Leachman,  20  *  Buck  v.  Goodrich,  .33  Conn.  37. 

Ala.  662.    But  not,  as  will  be  seen  here-         ^  Wyatt  v.  Simpson,  8  W.  Va.  394. 

138 


CHAP.  VI.]  wife's  EEAL  ESTATE,   ETC.  §  89 

Besides  the  rents  and  profits  during  coverture,  the  husband, 
if  the  survivor,  is  entitled  to  all  arrears  accrued  up  to  the 
time  of  his  wife's  death.  Such  property  is  not  treated  like 
the  wife's  choses  in  action,  not  reduced  to  possession.  Accord- 
ingly he  may  maintain  suit  after  coverture  to  recover  all  rents 
and  profits  which  had  accrued  while  coverture  lasted.  And 
where  the  wife  joins  her  husband  in  a  lease,  the  covenant  for 
payment  of  rent  is  for  the  husband's  benefit  alone  while  the 
usufruct  continues. 1  But  it  would  appear  to  be  otherwise 
where  rent  is  reserved  to  husband  and  wife,  and  her  heirs  and 
assigns.^  In  all  cases,  emblements  or  growing  crops  go  to  the 
husband  or  liis  representatives  at  the  termination  of  his  estate.^ 
This  rule  was  extended  at  the  common  law  to  cases  of  divorce 
causa  precontractus^  But  it  does  not  apply  to  divorce  for 
the  husband's  misconduct  under  modern  statutes.^  The  hus- 
band's lease  in  right  of  his  wife  operates  so  far  in  the  tenant's 
favor  as  to  entitle  the  latter  to  emblements.*'  The  rule  is  the 
same  whether  the  husband  be  tenant  by  curtesy  or  not.  No 
action,  therefore,  can  be  maintained  by  the  wife  in  such  cases. 
Where,  pending  an  action  of  ejectment  brought  by  husband 
and  wife  to  recover  possession  of  land  to  which  they  were  en- 
titled in  right  of  the  wife,  the  husband  dies,  the  right  to  the 
rent  current  and  in  arrear,  and  also  to  damages  for  waste, 
survives  to  the  wife ;  and  as  to  rents  accruing  after  the  wife 
dies  also,  tliese  go  to  her  heirs  and  devisees.' 

The  husband's  interest  in  his  wife's  real  estate  is  liable  for 
his  debts,  and  may  be  taken  on  execution  against  him.     But 

It  is  held  that  the  liusband  can  sue  in-  Pick.  463;  Beaver  v.  Lane,  2  Mod.  217; 

truders  alone  for  digging  up  the  soil  Shaw  v.  Partridge,  17  Vt.  626 ;  Edring- 

and   carrying    it   away.        Tallmadge  ton  y.  Harper,  3  J  J.  Marsh.  360  ;  Bai- 

V.  Grannis,  20  Conn.  296.     Or  gener-  ley  v.  Duncan,  4  Monr.  260. 
ally  tor  forcibly  entering   the   premi-  ^  Reeve    Dom.    Rel.   28,   and  cases 

ses.      Alexander    v.   Hard,   64   N.    Y.  cited;    Weems  ?'.  Bryan,  21  Ala.  302; 

228.  Spencer  i'.  Lewis,  1  Houst.  223. 

1  1  Washh.  Real  Prop.  44;  Co.  Litt.  *  Orland's  Case,  5  Coke,  116rt. 
35Wj;    Jones  i\   Patterson,    11    Barb.  5  See  Vincent  v.  Parker,    7   Paige. 
572;  Matthews  v.  Copeland,  79  N.  C.  65,  per  Chancellor  Walworth ;  Jenney 
493.  V.  Gray,  5  Ohio  St.  45. 

2  Hill  V.  Sounders,  4  B.  &  C.  529.  6  Rownev'=  Case,  2  Vern.  322; 
The  wife  need  not  be  joined  in   such  Gould  ?•.  Webster,  1  Vt.  409. 

8uits  for  rent.     Clapp  v.  Stoughtou,  10         '  King  i  Little,  77  N.  C.  138. 

139 


§89 


THE   DOMESTIC   RELATIONS. 


[part  II. 


nothing  more  than  the  husband's  usufruct  is  thereby  affected  ; 
nor  can  the  attachment  or  sale  affect  the  wife's  ultimate 
title.^ 

A  husband's  life  estate  may  be  barred  by  a  statute  of  limi- 
tations like  other  freehold  interests.^  At  the  common  law, 
attainder  of  treason  or  other  felony  worked  a  forfeiture  or 
escheat  of  real  estate  to  the  government.  And  corruption  of 
blood  affected  the  inheritance  in  such  cases.  Bat  as  regarded 
the  wife's  real  estate,  nothing  more  could  be  taken  than  the 
husband's  life  interest:  the  freehold  continued  in  the  wife  as 
before.  For  the  same  reason,  where  tlie  wife  was  at  common 
law  attainted  of  felony,  the  lord  might  enter  to  the  lands  by 
escheat,  and  eject  the  husband  whenever  the  crown  had  had 
its  prerogative  forfeiture  of  a  year  and  a  day's  waste.^  The 
common  law  of  attainder  is  of  no  force  in  this  country  so  far 


1  2  Kent  Com.  131 ;  Babb  v.  Perley 
1  Me.  6;  Mattocks  v.  Stearns,  9  Vt. 
326 ;  Perkins  v.  Cottrell,  15  Barb.  446  ; 
Brown  v.  Gale,  5  N.  H.  416;  Canby  v. 
Porter,  12  Ohio,  79 ;  Williams  v.  Mor- 
gan, 1  Litt.  168 ;  Nichols  v.  O'Neill,  2 
Stockt.  88;  Montgomery  v.  Tate,  12 
Ind.  615;  Lucas  v.  Rickericli,  1  Lea, 
726;  Sale  v.  Saunders,  24  Miss.  24; 
Cheek  v.  Waldrum,  25  Ala.  152  ; 
Schneider  v.  Starke,  20  Mo.  269.  But 
see  Jackson  y. Ifeuffern,  19  Wend.  175. 
And  see  Rice  v.  Hoffman,  35  Md.  344, 
as  to  the  liability  e.xtending  to  the 
husband's  interest  as  tenant  by  the 
curtesy.  The  rule  in  Massachusetts 
is  to  allow  the  purchaser  to  take  the 
rents  and  profits  for  a  definite  period, 
or  the  whole  life  estate,  at  an  appraisal 
of  the  value  founded  on  a  proper  esti- 
mate of  the  probability  of  human  life. 
But  where  the  whole  life  estate  is  of 
more  value  than  the  amount  of  the 
execution,  the  more  proper,  and  per- 
haps the  only  mode,  is  the  former. 
Litclifield  V.  Cadworth,  15  Pick.  23.  It 
has  been  iield  that  the  husband,  under 
a  bona  Jide  deed  of  separation,  without 
trustees,  executed  before  judgment, 
may  relinquish  to  his  wife  all  interest 
in  her  lands,  and  thus  avoid  the  de- 

140 


mands  of  his  creditors  upon  the  prop- 
erty, even  though  an  annuity  be 
reserved  to  himself.  Bonslaugh  v. 
Bonslaugh,  17  S.  &  R.  361.  But  see 
Bowyer's  Appeal,  21  Penn.  St.  210. 
And  it  is  certain  that  the  sheriff's  deed 
cannot  convey  a  greater  interest  than 
the  defendant  has  at  the  time  of  attach- 
ment or  of  levy  and  sale.  Williams  v. 
Amory,  14  Mass.  20  ;  Johnson  i-.  Payne, 
1  Hill,  111;  Rabb  v.  Aiken,  2  McC. 
Cli.  119.  Therefore,  wliere  a  statute 
allows  the  husband  a  distributive  share 
in  his  wife's  lands  in  the  event  of  his 
survivorship,  no  such  interest  passes  to 
thepurchaserof  lands  sold  on  execution 
for  his  debts  during  her  life.  Starke 
V.  Harrison,  5  Rich.  7.  Since  the  hus- 
band's life  interest  is  liable  for  his  own 
debts,  it  is  liable  for  the  debts  of  the 
wife  (hail  sola.  Moore  v.  Ricliardson,  37 
Me.  438.  And  it  is  held  in  Penn.^ylvania 
that  where  a  husband  has  conveyed  his 
life  estate  in  fraud  of  his  creditors,  they 
may  levy  upon  the  growing  crops. 
Stehman  v.  Huber,  21  Penn.  St.  260. 

2  Kibbie  v.  Williams,  58  111.  30. 

3  Bell  Hus.  &  Wife,  149,  150;  2  Bl. 
Com.  253,  254.  As  to  the  wife's  right 
of  dower  in  such  cases,  see  2  Bl.  Cora. 
253,  and  notes  by  Chitty  and  others. 


CHAP.  VI.]  wife's   real   ESTATE,   ETC.  §  90 

as  forfeiture  and  corruption  of  blood  is  concerned  ;  but  it 
probably  applies  to  the  husband's  life  interest  in  his  wife's 
lands.^  Where  tlie  husband  was  an  alien  he  could  not  ac- 
quire an  interest  in  his  wife's  real  estate  at  the  common 
law.2  But  the  disability  is  now  removed  in  great  measure  by 
statute.^ 

At  common  law,  too,  the  marital  rights  of  the  husband  do 
not  attach  to  realty  in  which  the  wife  has  only  a  remainder 
or  reversion  expectant  upon  the  termination  of  a  precedent 
life  estate.^  Mere  contingencies  of  the  wife,  which  cannot 
happen  before  the  death  of  either  spouse,  cannot  be  attached, 
therefore,  by  creditors  of  the  husband ;  ^  nor  landed  expec- 
tancies in  general  while  continuing  expectant.^ 

§  90.  "Wife's  Real  Estate ;  Husband's  Right  to  convey  or  lease. 
—  The  husl)and  alone  has  power  at  common  law  to  bind  or 
alienate  the  wife's  lands  during  coverture.  This  right  lasts, 
at  any  rate,  during  their  joint  lives  (provided  the  parties  are 
not  in  the  mean  time  divorced)  ;  and  if  the  husband  becomes 
a  tenant  by  curtesy,  it  lasts  during  his  whole  life.  But  the 
husband's  power  is  commensurate  with  his  estate.  He  can- 
not incumber  the  property  beyond  the  period  of  his  life 
interest,  nor  prevent  his  wife,  if  she  survives  him,  or  her 
heirs  after  his  death,  from  enjoying  the  property  free  from  all 
incumbrances  which  he  may  have  created.'^  Undei^the  ancient 
law  of  tenures  the  husband  could  transfer  the  property  so  as 
to  vest  it  in  the  grantee,  subject  to  the  wife's  entry  by  writ 
eui  in  vita;  for  his  act  amounted  to  a  discontinuance.  Stat- 
ute 32  Hen.  VIH.  c.  28,  was  remedial  in  its  effect,  so  far  as 
to  give  the  wife  her  writ  of  entry,  notwithstanding  her  hus- 
band's conveyance.  Copyhold  lands  followed  a  different  rule, 
not  being  considered  within  the  letter  or  the  equity  of  this 

1  See  Const.  U.  S.  Art.  III.  §  3.  8  Vict.  c.  66,  removes  disabilities  as  to 

2  Waslil).  Real  Prop.  48,  and  cases     dower  for  tlie  most  part. 

cited;    P>ell    ILis.    &  Wife,    151;    Co.  *  Baker  r.  Floiirnoy,  58  Ala.  650. 

Litt.    31/;,-    Menvill's    Case,    13    Co,  ^  Hornsby  w.  Lee,  2  Madd.  Ch.  16 ; 

293;  2  Bl.   Cora.  293;    2  Kent  Com.  Allen  v.  Scurry,  1  Yerg.  36;   Sale  v. 

39-75.  Saunders,  24  Miss.  24. 

8  See  note  to  1   Waslib.  Real  Prop  6  Osborne  v.  Edwards,  3  Stockt.  73; 

49,  giving  statutory  cbanges.    And  see  Baker  v.  Flournoy,  58  Ala.  650. 

Bell  Has.  &  Wife,  151,  241,     Stat.  7  &  ^  2  Kent  Com.'  133. 

141 


§  90  THE    DOMESTIC   RELATIONS.  [PART   II. 

statute.  But  by  the  more  recent  statutes  of  3  &  4  Will.  IV. 
c.  27  and  c.  74,  and  8  &  9  Vict.  c.  106,  fines  and  recoveries 
have  been  abolished  and  feoffments  deprived  of  their  tortious 
operation  ;  and  it  is  enacted  that  no  discontinuance  or  war- 
ranty made  after  the  31st  day  of  December,  1833,  shall  defeat 
any  right  of  entry  or  action  for  the  recovery  of  land.  At  the 
present  day  there  is,  therefore,  no  mode  of  conveyance  in  the 
English  law  b}^  which  the  husband  can  convey  more  than  his 
own  estate  in  his  wife's  lands. ^ 

These  latter  statutes  are  not,  per  se,  of  force  in  this  coun- 
try, for  they  were  passed  in  England  after  the  colonization 
of  America.  But  the  same  result  has  been  very  generally 
reached  in  this  country  through  a  different  process.  In 
Massachusetts,  the  statute  of  32  Hen.  VIII.  is  still  in  force 
as  a  modification  and  amendment  to  the  common  law.^  In 
other  States,  ejectment  or  other  summary  process  may  be 
resorted  to.^  The  universal  doctrine,  whatever  may  be  the 
form  of  remedy,  prevails,  that  the  husband  can  do  no  act  nor 
make  any  default  to  prejudice  his  wife's  inheritance.  And 
while  his  own  alienation  passes  his  life  estate,  it  can  do  no 
more;  and  the  wife,  notwithstanding,  may. enter  after  his 
death  and  hold  possession.* 

So  far  as  the  effect  of  the  husband's  lease  was  concerned, 
the  statute  32  Hen.  VIII.  c.  28,  changed  the  old  common 
law.  By  this  statute,  husband  and  wife  are  permitted  to 
make  a  joint  lease  of  the  wife's  real  estate  for  a  term  not 
exceeding  three  lives  or  twenty-one  years.  There  were, 
however,  some  restrictions  placed  upon  the  operation  of  this 
statute.  Thus,  it  was  further  declared  that  things  which  lie 
in  grant,  such  as  franchises,  should  be  excepted ;  though 
tithes  followed  the  general  principle.  And  the  old  lease 
must  have  been  surrendered  either  in  writing  or  by  opera- 
tion of  law  within  one  year  from  making  the  new  lease. 

1  1  Bright  Hus.  &  Wife,  162-168,  N.  Y.  Rev.  Stats.  4tli  ed.  vol.  2,  p.  303; 
and    authorities   cited ;    Bell    Hus.    &    2  Kent  Com.  133,  n. 

Wife,    195;    Robertson   v.   Norris,    11  *  2  Kent  Com.    133,  n.;    1  Washb. 

Q.  B.  916.  Real  Prop.   279 ;    Butterfield  v.  Beall, 

2  Bruce  v.  Wood,  1  Met.  542.  3  Ind.  203;  HufE  v.  Price,  50  Mo.  228; 

3  Miller  v.  Shackleford,  4  Dana,  264;  Jones  v.  Carter,  73  N.  C.  148. 

142 


CHAP.  VI.]  wife's   EEAL   ESTATE,   ETC.  §  90 

Property  in  possession  might  be  leased  under  the  statute, 
but  not  property  in  reversion.  The  lease  would  not  exempt 
the  tenant  from  responsibility  for  waste.  And  the  rent 
reserved  should  not  be  less  than  the  average  rent  of  the 
preceding  twenty  years.  This  statute  has  been  strictly  con- 
strued both  in  the  common-law  and  equity  courts  of  Eng- 
land.i 

But  the  husband's  lease  of  the  wife's  lands,  whether  alone 
or  jointly  with  her,  may  be  good  at  the  common  law,  though 
not  made  in  compliance  with  the  statute.  In  such  case  the 
wife  may  affirm  or  disaffirm  the  lease  at  the  expiration  of 
coverture.  And  the  same  right  may  be  exercised  by  her 
issue,  or  by  others  claiming  under  her  or  in  privity  with  her. 
So,  too,  where  she  marries  again  after  her  husband's  death, 
her  second  husband  has  the  privilege  of  election  in  her  stead. 
But  one  who  claims  by  paramount  title  to  the  wife,  as,  for 
instance,  a  joint  tenant  surviving  her,  cannot  exercise  this 
right.^ 

Some  acts  of  the  wife,  on  being  released  from  coverture, 
will  amount  to  an  affirmance  of  her  husband's  informal  lease. 
Thus  acceptance  of  rent  from  the  tenant,  after  her  husband's 
death,  will  confirm  the  lease.^  But  parol  leases  of  the  wife's 
real  estate  are  affected  by  the  statute  of  frauds ;  and  not 
even  acceptance  of  rent  can  bind  the  Avife  surviving :  the 
lease  will  be  treated  as  utterly  void  at  the  husband's  death, 
and  not  voidable  only.*  Whether  acceptance  of  rent  by  the 
wife  after  the  husband's  death  would  confirm  a  lease  in 
writing,  made  by  the  husband  alone,  is  a  question  on  which 
the  authorities  are  not  agreed.^  A  distinction,  however,  is 
sometimes  made  between  leases  for  life  and  leases  for  terms 

1  Bell   Hus.   &   Wife,    170-181 ;    1  ^  Doe  v.  Weller,  7  T.  R.  478. 
Bright   Hus.   &  Wife,   103-219 ;    Dar-         <  Bell  Hus.  &  Wife,  178.     And  see 
lington  V.  Pulteny,  Cowp.  267.  Winstell  r.  Helil,  6  Bush,  58. 

2  Bell  Hus.  &  Wife,  175,  177;  Jef-  &  Bell  Hus.  &  Wife,  177,  and  cases 
trey  V.  Guy,  Yelv.  78;  Smalman  v.  cited ;  Preamble  to  Stat.  32  Hen.  VIII. 
Agborow,  Cro.  Jac.  417;  Anon.,  2  c.  28  ;  Cro.  Jac.  332  ;  Bac.  Abr.  Leases. 
Dyer,  159.  See  also  Toler  v.  Slater,  C.  1.  See  2  Saund.  180,  n.  10;  Bro. 
L.  R.  3  Q.  B.  42,  where  the  lessee  Abr.  Acceptance,  1 ;  Vaugh.  40  ;  Good- 
was  held  bound  on  his  covenant  to  right  r.  Straphan,  1  Cowp.  201 ;  Hilly, 
pay  rent.  Saunders,  2  Bing.  112. 

143 


§  92  THE   DOMESTIC    KELATIOXS.  [PART   U. 

of  years,  when  made  by  the  husband  alone.  The  former,  it 
is  said,  being  freehold  estates  and  commencing  by  livery  of 
seisin,  could  only  be  avoided  by  entry ;  while  the  latter 
became  void  absolutely  on  the  husband's  death.  But  accord- 
ing to  the  better  authority  both  kinds  of  leases  follow  the 
same  principle,  and  are  not  void  but  voidable  at  the  hus- 
band's death. ^ 

§  91.  Wife's  Real  Estate  ;  Husband's  Mortgage ;  "Waste.  — 
The  husband's  mortgage  of  his  wife's  real  estate  is  effectual 
to  the  same  extent  as  his  absolute  conveyance  ;  that  is  to  say, 
it  will  operate  upon  his  life  estate  or  the  joint  life  estate  of 
himself  and  his  wife,  as  the  case  may  be,  and  no  further. 
And  his  lease  of  the  wife's  lands  for  a  term  of  jears,  for  the 
purpose  of  creating  an  incumbrance  in  the  nature  of  a  mort- 
gage, is  treated  in  equity  as  a  mortgage ;  and  the  wife's 
acceptance  of  rent  after  his  death  cannot  make  such  a  lease 
other  than  void  on  the  termination  of  his  life  estate.^ 

§  92.  Wife's  Real  Estate  ;  Husband's  Dissent  to  Purchase,  &c. ; 
Conversion. —  The  husband  may  dissent  from  a  purchase,  gift, 
or  devise  of  real  estate  to  his  wife  during  coveiture  ;  since 
otherwise  he  might  be  made  a  life  tenant  to  his  own  disad- 
vantage. But  by  such  dissent  he  cannot  and  ought  not  to 
defeat  her  ultimate  title  as  heir.^  Nor  on  j^rinciple  should  he 
be  permitted  to  dissent  to  any  purchase,  gift,  or  devise  to  the 
wife's  separate  use,  by  the  terms  of  which  his  own  interest  as 
life  tenant  is  legally  excluded.  Subject  to  the  husband's 
dissent  and  the  wife's  disagreement  after  her  coverture  ends, 
a  conveyance  to  the  wife  in  fee  is  always  good.* 

If  the  real  estate  of  the  wife  be  converted  into  personalty 

1  Bell  Hus.  &  Wife,  177,  178,  and  Harris,  15  Wend.  615;  Railroad  Co.  v. 
cases  cited;  contra,  notes  to  Kent  Harris,  9  Ind.  184;  Kay  r.  Wliittaker, 
Com.  133,  and  authorities  referred  to,  44  N.  Y.  565.  As  to  tlie  wife's  remedy 
including  note  of  Serjeant  Williams  to  for  waste,  see  Sclioul.  Hus.  &  Wife, 
Wotton  V.  Ilcle,  2  Saund.  180.  §  171 ;  1  Waslib.  Real  Prop.  118-124. 

2  Bell  Hus.  &  Wife,  193,194;  Good-  ^  Co.  Litt.  3a;  1  Dane  Abr.  388;  4 
right  V.  Straphan,  1  Cowp.  201 ;  Dry-  ib.  397  ;  1  Washb.  Real  Prop.  280. 
butter  I'. Bartholomews,  2  P.  Wms.  127.  *  Co.  Litt.  3a,  3oQh;2  Bl.  Com. 
The  husband's  mortgage,  in  this  coun-  292,293;  2  Kent  Com.  150.  The  wife's 
try  also,  passes  only  his  life  estate,  privilege  of  disagreement  to  purchase 
under  the  like  circumstances.     Miller  extended  to  her  heirs.     Ib. 

V.  Shackleford,  3  Dana,  291 ;  Barber  v. 

144 


CHAP.  VI.]  wife's   real  ESTATE,   ETC. 


§93 


during  her  life  by  a  voluntary  act  of  the  parties,  the  proceeds 
become  personal  estate,  and  the  husband  nia}^  reduce  into  his 
own  possession  or  otherwise  take  the  proceeds.  This  princi- 
ple is  known  as  conversion.^  But  where  conversion  takes 
place  by  act  of  law,  independently  of  husband  and  wife,  the 
rule  is  not  so  clear.^  On  the  other  hand,  the  rule  is  an- 
nounced that  where  a  married  woman  is  entitled  to  a  legacy, 
and  land  is  given  her  in  lieu  thereof,  the  husband  having 
effected  no  prior  reduction  of  the  legacy,  it  is  to  be  held  as 
hers  and  for  her  sole  benefit.  A  case  of  this  sort  was  lately 
decided  in  Pennsylvania.^  And  it  is  held  that  land  pui'chased 
b}^  a  married  woman  with  the  proceeds  of  a  legacy  which  the 
husband  has  declined  to  reduce  into  possession  is  not  liable 
for  the  husband's  debts.* 

§  93.  Wife's  Real  Estate  ;  Husband's  Agreement  to  Convey. 
—  By  the  old  law  of  England  it  appears  that,  if  a  husband 
agreed  to  convey  real  estate  belonging  to  his  wife,  he  might 


1  Hamlin  v.  Jones,  20  Wis.  536; 
Watson  V.  Robertson,  4  Busli,  37  ;  Till- 
man V.  Tillman,  50  Mo.  40  ;  Sabel  v. 
Slingluff,  -32  Md.  132 ;  Humphries  v. 
Harrison,  30  Ark.  79  ;  Schoul.  Hus.  & 
Wife,  §  156. 

2  Graham  v.  Dickinson,  3  Barb.  Ch. 
170.  In  this  case,  Flanagan  v.  Flana- 
gan, 1  Bro.  C.  C.  500,  appears  to  have 
been  disapproved.  In  New  York,  how- 
ever, it  is  held  that  where  the  real 
estate  of  a  married  woman  has  been 
converted  into  personalty  by  operation 
of  law  during  her  lifetime,  it  will  be 
disposed  of  by  a  court  of  equity,  after 
her  death,  in  the  same  manner  as  if  she 
had  herself  converted  it  into  personal 
property  previous  to  her  death.  Gra- 
ham V.  Dickinson,  3  Barb.  Ch.  170. 
So,  too,  in  some  States,  conversion  of 
real  estate,  imder  partition  proceed- 
ings, into  personalty  has  been  held 
complete  where  equity  decreed  parti- 
tion, and  the  wife  died  after  a  final 
confirmation  of  the  sale  in  court,  all 
terms  of  sale  having  beei% complied 
with,  and  all  formalities  duly  observed. 
Jones  V.  Plummer,  20  Md.  416  ;  Cow- 

10 


den  V.  Pitts,  2  Baxt.  59.  Where  an  ad- 
ministrator's sale  of  the  wife's  land  is 
irregular,  the  husband  cannot,  apart 
from  the  wife,  confirm  it,  even  though 
he  has  received  the  purchase-money. 
Kempe  v.  Pintard,  32  Miss.  324.  See 
also  Ellsworth  y.  Hinds.  5  Wis.  613; 
Osborne  v.  Edwards,  3  Stockt.  73.  But 
a  husband  may  demand  and  reduce 
into  possession  his  wife's  legacy,  even 
though  it  be  made  payable,  by  the 
terms  of  a  will,  from  proceeds  of  the  sale 
of  the  testator's  real  estate.  Thomas 
V.  Wood,  1  Md.  Ch.  296.  Conversion 
takes  place  where  husband  and  wife 
convey  to  trustees  to  sell  and  dispose 
for  payment  of  debts,  balance  to  be 
paid  them  as  they  shall  direct  or  ap- 
point. Siter  V.  McClanachan,  2  Gratt. 
80.     And  see  post,  c.  14. 

3  Davis  V.  Davis,  46  Penn.  St.  342. 
But  see  Davis's  Appeal,  60  Penn.  St. 
118. 

4  Coffin  V.  Morrill,  2  Fost.  352.  And 
see  Sims  v.  Spalding,  2  Duv.  121.  See 
further  incidents,  Schoul.  Hus.  &  Wife, 
§172. 

145 


§  94  THE   DOMESTIC   RELATIONS.  [PART   U. 

be  compelled  to  execute  the  contract  by  getting  her  to  lev}'- 
a  fine.i  This  rule  no  longer  holds  good  in  that  country .^ 
Even  where  the  agreement  has  been  made,  not  by  the  hus- 
band, but  by  the  wife  herself  before  her  marriage,  the  agree- 
ment cannot  now  be  enforced  against  the  wife.^  But  it  is 
nevertheless  binding  upon  the  husband  ;  though,  where  the 
purchaser  has  not  been  misled,  the  husband  cannot  be  made 
to  convey  his  partial  interest  and  submit  to  an  abatement  of 
the  price,  because  of  the  wife's  refusal  to  convey  her  real 
estate  which  he  and  she  had  promised  to  convey.^ 

§  94,  Wife's  Agreement  to  Convey  ;  Her  Conveyance,  Mort- 
gage, &c.,  under  Statutes.  —  An  agreement  by  a  feme  covert  for 
the  sale  of  her  real  estate,  the  same  not  being  her  separate 
property,  cannot  be  enforced  at  law  or  in  equity  against  her.^ 
And  Sugden  considers  it  doubtful  whether  a  married  woman, 
having  a  power  of  appointment,  can  thus  bind  herself.^  But 
modern  statutes,  which  permit  the  wife  to  convey  with  the 
observance  of  certain  formalities,  often  permit  her  generally 
to  contract,  to  convey,  and  to  incumber  her  lands. 

Under  the  modern  statute  of  3  &  4  Will.  IV.  c.  74,  which 
took  effect  in  England  from  the  end  of  the  year  1833,  married 
women  are  permitted  to  alienate  or  incumber  their  real  estate 
by  conveyances  executed  with  their  husl)ands  pursuant  to  its 
provisions.  This  important  law,  with  its  later  modifications, 
unfettered  property  which  had  long  been  fast  bound."  The 
statute  requires  the  concurrence  of  the  husband  in  such  con- 
veyances ;  also  that  the  wife  shall  make  an  acknowledgment 
before  certain  judicial  officers  designated  by  the  act,  apart 

1  2  BriEfht  Hus.  &  Wife,  47;  Macq.  Ves.  474;  Castle  v.  Wilkinson,  L.  R. 
Hus.  &  Wife,  32.  5  Ch.  534. 

2  Frederick  v.  Coxwell,  3  Y.  &  J.  ^  Macq.  Hus.  &  Wife,  32 :  Emery  v. 
514;  Emery  v.  Ware,  8  Ves.  505;  2  Ware,  5  Ves.  846;  Sug.  V.  &  P.  11th 
Story  Eq.  Juris.  §§  49-53 ;  Thayer  v.  ed.  230. 

Gould,  1  Atk.  617;  1  Amb.  495.     But         6  s„g.  v.  &  P.  11th  ed.  231.     She 

see  Davis  v.  Jones,  4  B  &  P.  2G7.  certainly  cannot  in  some  States.     Ken- 

2  Per  Lord  Ch.  Cottenham,  Jordan  nedy  v.  Ten  Broeck,  11  Bush,  211.    But 

y.  Jones,  2  Phill.  170;  Rowley  W.Adams,  the  wife  cannot  use   her  privilege  in 

6  PI  L.  &  Eq.  124.  this  respect  unfairly,  where  the  pur- 

*  Tothill,  100 ;  Hall  v.  Hardy,  3  P.  chaser  ha^  become  bound  on  his  part. 

Wms.   187  ;   Morris  v.   Stephenson,   7  See  Cross  v.  Noble,  67  Penn.  St.  74. 


7  See  8  &  9  Vict.  c.  100. 


146 


CHAP.  VI.]  wife's   real   ESTATE,    ETC.  §  94 

from  her  husband,  to  the  effect  that  her  own  consent  is  freely 
and  voluntarily  given. ^ 

In  this  country  the  custom  of  a  wife's  joining  her  husband 
in  a  deed  of  conveyance  of  her  lands  has  prevailed  from  a 
very  early  period.  In  most,  if  not  all,  of  the  States,  there 
are  statutes  existing  as  to  the  mode  of  execution,  which  con- 
template the  joinder  of  husband  and  wife  in  the  conveyance, 
and  an  acknowledgment  by  one  or  both  of  the  parties.^ 
Some  of  the  States  require  a  separate  acknowledgment  of  the 
wife  apart  from  her  husband,  and  even  a  privy  examination 
by  the  magistrate,  so  as  to  make  sure  that  she  is  acquainted 
with  the  contents  of  the  deed,  and  acts  freely  and  under- 
standingly;  but  in  this  and  other  respects  the  laws  are  not 
uniform.  There  is  less  formality  in  general  than  under  the 
English  statute.  Thus,  then,  does  the  wife  pass  title  to  her 
real  estate. 

And  since,  in  the  tenure  of  lands  and  the  mode  of  convey- 
ance, the  law  in  this  country  has  always  varied  considerably 
from  that  of  England,  the  rights  of  married  women  in  other 
respects  may  be  different.'^     But  following  the  English  doc- 

1  See  Macq.  ITus.  &  Wife,  28-32  ;  ib.  Page  v.  Page,  6  Cush.  196  ;  2  Kent 
Appendix,  1-47,  where  the  provisions  Com.  151-155,  and  notes,  showing  cus- 
of  this  act,  tlie  rules  of  court  made  in  torn  in  different  States ;  Albany  Fire 
pursuance,  and  leading  decisions  on  the  Ins.  Co.  ?;.  Bay,  4  Comst.  9  ;  Ford  v. 
construction  of  different  sections  are  Teal,  7  Bush,  156  ;  Mount  v.  Kester- 
fuUy  given.  And  see  In  re  DowJing,  son,  6  Cold.  452;  Tourville  i'.  Pierson, 
18  C.  B.  N.  s.  233.  We  have  not  thought  39  111.  446  ;  Deery  v.  Cray,  5  Wall.  795 ; 
it  worth  while  to  embody  them  in  this  Alabama,  &c.  Ins.  Co.  v.  Boykin,  38 
work,  as  they  have  only  a  local  appli-  Ala.  510  ;  Lindley  r.  Smith,  46  111.  523; 
cation.  There  are  many  cases  con-  Tnbbs  r.  Gatewood,  26  Ark.  128.  The 
stantly  arising  in  the  English  courts  as  privy  examination  of  a  wife  for  ascer- 
to  the  interpretation  of  this  statute,  taining  that  she  executes  the  deed 
with  its  amendments ;  but  they  seem  freely  and  without  undue  influence  or 
chiefly  confined  to  the  effect  of  the  compulsion  of  lier  husband  is  a  feature 
wife's  acknowledgment.  Previous  to  of  the  legislation  in  many  States ;  and 
the  statute  of  3  &  4  Will.  IV.  c.  74,  the  the  validity  of  her  conveyance  often 
wife  could  convey  her  interest  only  by  turns  upon  a  compliance  with  such  a 
levying  a  fine,  which,  as  well  as  suffer-  requirement.  Schoul.  Hus.  &  Wife, 
ing  recoveries,  is  abolished  by  that  stat-  §  174. 

nte.      1   Washb.    Peal.    Prop.   280 ;    1  ^  Thus  it  would  seem  that  the  joint 

Wms.  Peal  Prop.  88.  assent  of  husband  and  wife  in  accept- 

2  1  Washb.  Eeal  Prop.  281,  and  cases  ing  a  title  should  be  as  good  as  in 
cited;  Davey  r.  Turner,  1  Dall.  15;  granting  one.  1  Washb.  Real  Prop. 
Jackson  v.  Gilchrist,   15  Johns.   109;  280.    And  in  New  Hampshire  it  is  held 

147 


94 


THE  DOMESTIC   KELATIOXS. 


[part  II. 


trine,  the  wife's  executory  agreement  to  convey  real  estate, 
whether  expressed  by  bond  or  simple  instrument,  is  in  this 
country  held  void  in  the  absence  of  enabling  statutes,  like 
her  general  contracts,  though  made  with  her  husband's 
assent ;  and  specific  performance  cannot  be  enforced  against 
her.^  So  it  has  been  held  in  Vermont  that  the  wife  cannot, 
either  separately  or  jointly  with  her  husband,  execute  a  valid 
power  of  attorney  to  convey  her  lands.^  And  a  deed,  in 
order  to  bind  the  wife's  heirs,  must  have  been  delivered,  as 
well  as  executed,  during  her  lifetime.-^  Nor  can  her  husband, 
after  her  decease,  as  against  such  heirs,  confirm  a  conveyance 
which  was  fatally  irregular  on  her  part.*  If  her  conveyance 
be  void,  a  note  given  in  part-payment  of  the  price  is  neces- 
sarily without  consideration.'^  And  as  she  cannot  bind  her- 
self to  convey,  neither  can  she  be  bound  by  her  agreement  to 
purchase.^  Nor  will  the  law  coerce  her  into  fulfilling  her  agree- 
ment by  granting  exemplary  damages  against  her  husband.^ 


that  a  deed  to  a  feme  covert,  made  with 
her  own  and  her  husband's  assent,  vests 
the  title  legally  in  lier.  Gordon  v.  Hay- 
wood, 2  N.  H.  402.  See  Leach  v.  Noyes, 
45  N.  H.  364. '  In  Pennsylvania,  if  land 
conveyed  to  her  be  incumbered,  it 
passes  to  her  subject  to  tliat  incum- 
brance. Cowton  V.  Wickersham,  54 
Penn.  St.  302.  And  in  Vermont  it  has 
been  held  tliat  a  deed  of  gift  to  a  wife 
during  coverture,  if  accepted  by  her 
husband,  is  accepted  by  her,  and  that 
her  refusal  apart  from  him  is  of  no  con- 
sequence. Brackett  v.  Wait,  6  Vt.  411. 
1  2  Kent  Com.  1G8  ;  Butler  v.  Buck- 
ingham, 5  Day,  492;  Dankel  v.  Hunt- 
er, 61  Penn.  St.  382;  Stidham  v.  Mat-, 
thews,  2D  Ark.  650  ;  Moseby  v.  Partee, 
5  Heisk.  26  ;  Holmes  v.  Thorpe,  1  Halst. 
Ch.  415  ;  Lane  v.  McKeen,  15  Me.  304. 
We  make,  of  course,  no  reference  here 
to  the  wife's  separate  propertij,  or  to  her 
rights  under  what  are  known  as  the 
"  married  women's  acts,"  to  be  consid- 
ered post.  See  Blake  v.  Blake,  7  Iowa, 
46.  A  contract  to  convey,  made  by 
husband  and  wife,  may  be  good  against 
tlie  husband,  though  void  as  to  the 
wife.    StefEey  v.  Steffey,  19  Md.  5; 

148 


Johnston  v.  Jones,  12  B.  Monr.  326. 
2  Kent  Com.  168.  See  supra,  §  60. 
Upon  the  strict  assent  of  husband  and 
wife,  equity  has  sometimes  decreed  a 
sale  under  the  wife's  title  bond.  Mose- 
by V.  Partee,  5  Heisk.  26.  As  to  the 
wife's  ratification  of  the  husband's  un- 
autliorized  contract  for  the  sale  of  her 
land,  see  Ladd  v.  Hildobrandt,  27  Wis. 
135. 

2  Sumner  v.  Conant,  10  Yt.  1  ;  Gil- 
lespie V.  Worford,  2  Cold.  632 ;  Har- 
denburgh  v.  Lakin,  47  N.  Y.  109. 

3  Thoenberger  v.  Zook,  34  Penn. 
St.  24.  But  see  Ackert  v.  Pults,  7 
Barb.  386  ;  Somers  v.  Pumphrey,  24 
Ind.  231. 

4  Dow  V.  Jewell,  1  Post.  470. 

5  Warner  v.  Crouch,  14  Allen,  163. 
^  Robinson   v.  Robinson,   11  Bush, 

174.  But  though  coverture  is  a  good 
defence  to  a  suit  for  specific  perform- 
ance, the  wife  will  not  be  permitted  to 
refuse  a  deferred  payment  of  purcliase- 
money  and  at  the  same  time  retain  the 
land.     Staton  r.  New,  49  Miss.  307. 

7  Burk  V.  Serrill,  80  Penn.  St.  413. 
In  some  States  the  separate  convey- 
ance of  a  married  woman,  or  her  ex- 


CHAP.  VI.]  wife's    real   ESTATE,    ETC.  §  95 

So,  too,  in  this  country,  a  married  woman  may  mortgage 
as  well  as  alienate  her  real  estate  by  joining  her  husband  in 
the  conveyance  and  making  due  acknowledgment ;  and  this, 
too,  though  no  consideration  pass  to  her  thereby.  ^  Where 
the  wife  joins  her  husband  in  a  conveyance  in  the  nature 
of  a  mortgage,  she  subjects  her  real  estate  to  the  risk  of 
complete  alienation  by  foreclosure  for  her  husband's  debt, 
or  by  sale  under  a  power  of  sale  thereby  conferred.  She 
is  estopped  by  her  own  acts  from  denying  the  validit}'  of  the 
mortgage.'''  She  may  covenant  that  scire  facias  may  issue 
in  default  of  payment.^  She  may  create  a  valid  power  in 
the  mortgage  to  sell  in  default  of  payment.*  And  in  gen- 
eral she  may  convey  upon  condition  and  prescribe  the  terms.^ 
But  independently  of  an  express  statute  permission,  and  as 
our  statutes  generally  run,  the  wife's  mortgage  without  her 
husband's  joinder  or  assent  is  void.^  And  so  is  her  assign- 
ment of  a  mortgage." 

§  95.  Covenants  in  Wife's  Statute  Conveyance  or  Mortgage, 
&c. —  The  rights  of  the  wife  are  nevertheless  in  all  such  cases 
of  conveyance,  absolutel}^  or  for  security,  treated  with  great 

ecution  jointly  with  her  liusband,  but  ^  Eaton  v.  Nason,  47  Me.  132  ;  Swan 

without  observance  of  tlie  full  statute  i'.  Wiswail,  15  Pick.    128 ;  Whiting  v. 

formahties,  is  void.    But  in  otliers  such  Stevens,  4  Conn.  44  ;  Demarcst  o.  Wyn- 

irreguharities  are  not  hekl  fatal  to  tlie  koop,  3  Joiins.  Cli.  144 ;  2  Kent  Cora. 

instrument,    and    she    is    furtliermore  167 ;  Siter   v.   McClaiiachan,  2  Graft. 

bound   on   the  usual  principles,   even  280;  Schoul.  Hus.  &  Wife,  §  176;  Am- 

though  her  deed  be  separate  from  that  erican,  &c.  Ins.  Co.  v.  Owen,  15  Gray, 

of  her  husband  and  executed  at  a  dif-  491. 

ferent    time.     Tlie    question    in   such  ^  McCullough  v.  Wilson,  21  Penn. 

cases  is  mainly  one  of  statute  construe-  St.  436. 

tion  ;  and  as  to  formalities  a  distinction  ^  Black  v.  Galway.  24  Penn.  St.  18. 

may  be  taken  between  mere  errors  of  ^2  Kent  Com.  167  ;  Vartie  v.  Un- 

description,  or  literal  informalities  of  derwood,  18  Barb.  561;  Barnes  v.  Ehr- 

execution  or  acknowledgment  on   the  man,  74  111.  402. 

one  hand,  and,  on  the  other,  the  dis-  ^  Demarcst  v.  Wynkoop,   3  Johns. 

regard  of  some  statutory  requirement,  Ch.  129;  2  Kent  Com.  167.    So,  too,  in 

so  as   to    substantially    violate   pviblic  England.     Pybus  v.  Smith,  1  Ves.  Jr. 

policy,  such,  for  instance,  as  her  sep-  189. 

arate   acknowledgment,  or   her  decla-  ^  Weed    Sewing    Machine    Co.    v, 

ration  before  the  magistrate  that  she  Emerson,  115  Mass.  554;    Bressler  v. 

executed   freely  and    understandingly  Kent,  61  111.  426 ;  Yager  i\  Merkle,  26 

for  the  purpose  speciiied.    See  Schoul.  Minn.  429;  Herdmann  v.  Pace,  85  111. 

Hus.  &  Wife,  §§   175,  176,  where  this  345. 

subject  of  statute  conveyances  by  hus-  ^  Moore  v.    Cornell,   68  Penn.   St. 

band  and  wife  is  considered  at  length.  320. 

149 


§  95  THE   DOMESTIC   RELATIONS.  [PAET   II. 

consideration  in  our  courts.^  Wherever  the  wife  joins  her 
husband  in  a  mortgage  of  her  own  property  to  secure  his 
debts  or  tlie  paymenc  of  money  loaned  to  him,  she  is  merely 
the  surety  of  her  husband,  and  is  entitled  to  all  the  rights 
and  privileges  of  a  surety.  Tliis  rule  is  well  settled.^  The 
property  actually  mortgaged  by  her,  and  not  her  propertj^  in 
general,  is  thus  subjected  to  the  payment  of  her  husband's 
note  ;  and  she  cannot  be  held  personally  liable  for  any  de- 
ficiency under  the  foreclosure  sale.^ 

So,  too,  a  wife  is  not  bound  by  her  warranty  in  a  deed 
which  she  executes.  Nor  by  any  covenants  contained  therein. 
This  is  the  general  common-law  rule  in  England  and  Amer- 
ica.^ For  this  accords  with  the  principle  that  married  women 
are  incapable  of  binding  themselves  by  contract ;  and  the 
effect  of  her  conveyance  under  the  statute  is  simply  that  she 
j)asses  whatever  title  she  had  in  the  lands  conveyed.  Yet 
the  husband  may  be  bound  on  his  part,  where  he  joins  her, 
notwithstanding.^  In  England,  where  the  wife  formerly 
passed  her  real  estate  by  suffering  a  fine,  it  was  held  long  ago 
that  if  the  grantee  were  evicted  by  a  paramount  title,  the 
wife  could  be  sued  on  her  covenant  of  warranty  after  her 
husband's  death.^  So,  too,  it  was  formerly  said  that  the  wife 
should  be  held  bound  on  the  covenants  contained  in  a  lease 
of  her  lands  executed  during  coverture,  with  her  husband, 
and  afiirmed  by  herself  after  his  death,  by  such  acts  as  the 
acceptance  of  rent;"  and  this  doctrine  is  certainly  not  un- 
reasonable so  far  as  a  subsequent  breach  of  covenant  is  con- 
cerned.    But  further  than  this,  courts  would  not  probably  go 

1  See  Bayler  v.  Commonwealth,  40  Falmouth  Briilge  Co.  v.  Tibbetts,  16 
Penn.  St.  37,  per  Strong,  J.;  ib.  p.  B.  Monr.  637 ;  Den  i-.  Demarest,  1  Zab. 
44.  (N.  J.)  525  ;  Rawle  Cov.  573,  574  ;  Bota- 

2  Neimcewicz  v.  Gahn,  3  Paige,  614  ;  ford  v.  Wilson,  75  111.  133. 

Hawley  I'.  Bradford,  9  Paige,  200 ;  Var-  5  Ruell   v.    Sliuman,   28   Ind.   464; 

tie  V.  Underwood,  18  Barb.  561.     See  Griner  v.  Butler,  61  Ind.  3G2. 
Schoul.    Hus.    &   Wife,    §   177,   more         «  Wotton  r.  Hele,  2  Saund.  177 ;  1 

fully.  Mod.  200.     Chancellor  Kent  justly  ob- 

3  Strotber  v.  Law,  54  HI.  413;  Lo-  serves  that  this  was  a  very  strong  case 
gan  V.  Thrift,  20  Ohio  St.  62;  Schoul.  to  show  tiiat  slie  might  deal  with  her 
Hus.  &  Wife,  §  177,  and  cases  cited.  land  by  fine  as  a  feme  sole.     2  Kent 

4  2  Kent  Com.  167,  168;  Fowler  v.  Com.  167. 

Shearer,  7  Mass.  21,  per  Parsons,  C.  J. ;  -2  Saund.  80,  note  9. 

150 


CHAP.  VI.]  wife's  BEAIi   ESTATE,   ETC.  §  96 

at  this  clay.^  And  in  this  country  the  wife's  covenants  in  a 
conveyance  executed  jointly  with  lier  husband  are  considered 
binding  upon  her  only  by  way  of  estoppel ;  and  not  so  as  to 
subject  her  to  suit  for  damages.^  And  as  she  is  not  answer- 
able for  a  breach  of  covenant,  neither  are  her  heirs  or 
devisees.^  Indeed,  in  New  York,  the  wife's  privilege  in  this 
respect  is  carried  much  further,  for  she  is  permitted  to  ex- 
ecute a  conveyance  of  land  with  her  husband,  containing  a 
covenant  of  warranty  on  her  part,  and  then  to  defeat  the  title 
by  acquiring  an  adverse  interest  afterwards.^ 

§  96.  Conveyance,  &c.,  of  Infant  "Wife's  Lands.  —  A  deed  of 
the  wife's  real  estate,  executed  by  husband  and  wife  while 
tlie  latter  is  under  age,  may  be  avoided  by  the  wife  within 
reasonable  time  after  discoverture,  though  more  than  twenty 
years  have  elapsed  ;  ^  for  this  is  analogous  to  the  conveyance 
of  an  infant  feme  sole  in  respect  of  validity.*^  But  not,  as  it 
is  held,  where  the  wife,  being  apparently  of  full  age,  made 
oath  that  she  was  of  age.''  As  to  the  lapse  of  time  permitted 
a  wife  for  disaffirming  the  deed  executed  by  her  during  in- 
fancy, the  rule  appears  to  be  that  a  reasonable  time  should 
be  allowed  her  after  coverture  has  terminated  by  the  death 
of  her  husband  or  their  complete  divorce,  even  though  twenty 
or  thirty  years  may  meantime  have  elapsed  since  her  attain- 
ment to  majorit}^^ 

1  Her  covenant  for  quiet  enjoyment  West,  8  Ohio,  225 ;  Massie  v.  Sebas- 
in  the  lease  of  her  lands  will  not  bind  tian,  4  Bibb,  436;  Nash  v.  Spofford, 
her.    Foster  v.  Wilcox,  10  R.  I.  443.  10  Met.  192.     And   see  4  Com.  Dig, 

2  Nash  V.    Spofford,   10  Met.    192;  19h. 

Jackson   v.  Vanderheyden,   17   Johns.  ^  Yourse  v.  Norcross,  12  Mo.  549. 

167  ;  Dean  v.  Shelly,  57  Penn.  St.  426;  And  see  Porch  v.  Fries,  3  C.  E.  Green, 

Hyde  v.  "W^irren,  46  Miss.  13.  204 ;  Dodd  v.  Benthal,  4  Heisk.  601 ; 

Her  subsequent  promise  as  widow  Williams  u.  Baker,  71  Penn.  St.  476. 
to  be  answerable  for  a  breach  of  cove-  ^  Dixon  i'.  Merrett,  21  Minn.  196. 

nant  committed  during  her  coverture  ^  Schmitheimer  v.  Eiseman,  7  Bush, 

is   without  consideration.     State  Nat.  298.     Sed  qu.,  where  the  land  belongs 

Bank  v.  Robidoux,  57  Mo.  446.  to  the  wife's  general,  and  not  her  sep- 

3  Foster  v.  Wilcox,  10  R.  I.  443.  arate,  estate.     Sims  v.  Everhardt,  102. 
*  Jackson     v.    Vanderheyden,     17  U.    S.   Supr.   300,   commenting    upon 

Johns.    167 ;    Carpenter   v.    Schermer-  Scranton  v.  Stewart,  52  Ind.  68. 

horn,  2  Barb.  Ch.  314.     And  see  Shu-  8  Sims  v.  Everhardt,  102  U.  S.  Supr. 

maker  v.  Jolmson,  35  Ind.  33.     Contra,  300.     And  see  Harrer  v.  Wallner,  80 

Colcord  V.  Swan,  7  Mass.  291 ;  Hill  v.  111.  197. 

151 


§  98  THE  DOMESTIC    RELATIONS.  [PART  H. 

§  97.  Distinction  between  Wife's  General  and  Separate  Real 
Estate.  —  We  may  observe,  on  the  whole,  that,  while  modern 
statutes  greatly  vary  in  this  country,  as  to  the  requisites 
attending  a  married  woman's  conveyance  of  her  lands,  and,  as 
we  shall  notice  hereafter,  concerning  her  legal  dominion  over 
her  lands,  the  disposition  is  to  construe  those  requisites  more 
strictly  in  the  case  of  her  general  or  common-law  real  estate 
than  where  she  owns  lands  as  her  statutory  separate  estate. 
Hence  a  distinction,  which  modern  legislation  tends  all  the 
while  to  obliterate,  between  the  conveyance  of  the  wife's 
general  land  and  of  her  separate  land.  As  to  the  latter, 
estoppel  in  pais  is  sometimes  applicable  ;  but  not  so,  usu- 
ally, with  the  former.  In  the  one  case  the  wife's  own 
conduct  during  coverture,  by  way  of  affirmance  or  receiv- 
ing benefits,  may  bind  her  in  spite  of  some  defective  meth- 
od of  conveyance :  in  the  other  and  present  case  it  does 
not.i 

§  98.  "Wife's  Life  Estate  ;  Joint  Tenancy,  &c.  —  If  the  wife  at 
the  time  of  her  marriage  has  a  life  estate  in  lands,  her  hus- 
band becomes  seised  of  such  estate  in  the  right  of  his  wife, 
and  he  is  entitled  to  the  profits  during  coverture.  So  if  it 
were  granted  to  a  trustee  for  her  own  use.  And  the  same 
rule  applies  whether  the  estate  be  for  the  life  of  the  wife  or 
of  some  other  person.  If  the  estate  be  for  the  wife's  own 
life  it  terminates  at  her  death,  and  the  husband  has  no  further 
interest  in  it.  But  if  it  be  an  estate  for  the  life  of  another  per- 
son who  survives  her,  the  husband  takes  the  profits  during  the 
remainder  of  such  person's  life  as  a  special  occupant  of  the 
land.  The  husband's  representatives  in  either  case  take  crops 
growing  on  the  land  at  the  time  of  his  death.^  But  the  hus- 
band might,  at  common  law,  take  a  release  or  confirmation  to 
enlarge  his  life  estate.^  The  conveyance  of  the  wife's  life  es- 
tate follows  the  usual  statute  rule  as  to  her  conveyances.^ 

1  See  cs.  10,  \l,post;  also  Wood  v.  ^2  Kent  Com.  134;  1  Bright  Hub. 

Terry,  30  Ark.  .385  ;  Oglesby  Coal  Co.  &  Wife,  112,  113. 

V.   Pasco,  79   111.  161 ;   Sims   v.  Ever-  3  Co.  Litt.  299. 

hardt,  102  U.  S.  Supr.  300,  opinion  of  *  Henning  c.  Harrison,  13  Bush,  723. 

court.  As  concerns  the  wife's  life  estate  in  her 

152 


CHAP.  VII.]  wife's   separate   PROPERTY.  §  100 

A  husband  acquires,  by  his  marriage,  the  right  to  use  and 
occupy,  during  coverture,  lauds  held  by  his  wife  in  joint 
tenancy.^ 

§  99.  Husband's  Freehold  Interest  in  Wife's  Land  not  Devis- 
able by  Wife.  —  The  freehold  which  the  husband  acquires  in 
his  own  right  in  the  real  estate  of  his  wife  during  her  cover- 
ture is  a  subject  upon  which  the  wife's  devise  cannot  operate, 
more  than  her  conveyance,  independently  of  his  permission.^ 


CHAPTER  VII. 

COVERTURE   MODIFIED   BY   EQUITY    AND    RECENT   STATUTES. 

§  100.  Prevalent  Tendency  to  Equalize  the  Sexes  ;  Marriage  Re- 
lation affected.  —  Aside  from  woman's  political  relations,  and 
those  social  and  business  opportunities  not  peculiar  to  the  mar- 
riage state,  which  are  now  extended  to  her  sex,  we  may  observe, 
both  in  England  and  the  United  States,  a  liberal  disposition 
of  court  and  legislature  within  the  present  century  to  bring 
her  nearer  to  the  plane  of  manhood,  and  advance  her  condi- 
tion from  obedient  wife  to  something  like  co-equal  marriage 
partner.  Man  makes  the  concessions,  step  by  step,  out  of 
deference  to  woman's  wishes,  and  in  token  of  her  influence  ; 
and  thus  does  the  coverture  theory  of  marriage  gradually 
fade  out  of  our  jurisprudence.  Tlie  liberal  tendencies  of 
modern  civilization  favor  this  change :  moreover,  that  love  of 
justice  and  individual  liberty  which  always  characterized  our 
Saxon  race,  and  the  steadfast  disposition  of  English  and 
American  courts  both  to  administer  the  written  law  impar- 
tially, and  to  extend  and  adapt  its  provisions  to  the  ever- 
changing  wants  of  society. 

real  or  personal  property,  the  English         i  Bishop  v.  Blair,  36  Ala.  80 ;  Roy- 
chancery  courts  liave  followed  out  ex-  ston  v.  Royston,  21  Ga.  161. 
ceptions  to  the  doctrines  of  equitable  2  Clarke's  Appeal,  79  Penn.  St.  376. 
assignment  already  noticed,  with  their  See  post,   as   to   the  wills  of   married 
limitations.     See  Purdew  v.  Jackson,  1  women. 
Russ.  1 ;  Schoul.  Hus.  &  Wife,  §  157 ; 
supra,  §  84. 

153 


§  100  THE  DOMESTIC   RELATIONS.  [PART  H. 

Our  preceding  pages  have  shown,  in  respect  to  the  person 
of  the  spouses,  their  matrimonial  domicile,  the  conjugal  re- 
straint and  correction  of  the  wife,  the  custody  of  the  offspring  ; 
again,  as  to  the  wife's  power  to  bind  as  agent,  her  necessa- 
ries, or,  in  respect  of  property,  her  equity  to  a  settlement, 
and  modern  modes  of  conveying  her  lands ;  a  modern 
disposition  to  so  construe  and  apply  or  niodity  the  old  law 
that  she  may  enjoy  a  very  fair  share  of  freedom  and  consid- 
eration in  the  household,  and  maintain  her  dignity  under  all 
circumstances.  Husband  and  wife  cease  to  be  one  ;  they  are 
two  distinct  persons  with  distinct  and  independent  rights. 
At  the  same  time  the  idea  of  unity  in  the  domestic  govern- 
ment—  of  domestic  government  at  all  —  becomes  weakened ; 
the  cruel  or  dissolute  husband  having  less  power  for  ill,  and 
the  just  and  faithful  one,  too,  finding  his  legal  authority  over 
a  high-tempered  companion  exceedingly  precarious.  Modern 
legislation  accomplishes  even  more  than  judicial  construction 
towards  this  result,  especially  in  the  United  States ;  and 
indeed,  as  to  the  married  women's  acts  and  divorce  acts  of 
this  day,  it  may  be  truly  said  that  England  borrows  more 
from  this  country  than  does  this  country  from  England. 

Of  the  American  married  women's  acts,  which  relate 
chiefly  to  their  property  and  contracts,  we  have  already 
spoken.^  These  acts  are  modern  ;  still,  they  are  constantly 
undergoing  local  change,  and  immense  labor  has  been  neces- 
sarily bestowed  by  local  courts  during  the  last  fifteen  years 
in  expounding  them.  We  shall  seek  to  place  before  the 
reader  such  legal  results  as  may  be  thought  to  have  passed 
into  principles ;  as  for  the  rest,  it  is  a  chaos  of  uninteresting 
rubbish,  from  which  the  practitioner  selects  only  that  which 
obtains  in  his  own  jurisdiction.  All  this  legislation  regard- 
ing the  rights  of  married  women  should  be  harmonized  and 
simplified  as  soon  as  practicable.  This  is  not  easy  with  so 
many  independent  States,  each  carving  out  its  own  career. 
And  the  difficulty  is  aggravated  from  the  fact  that  the  mar- 
ried women's   acts   had  no   common   origin ;  there   was  no 

1  See  Part  I.,  supra. 

154 


CHAP,  vn.]        wife's  separate  property.  §  102 

model  found  to  work  from,  English  or  American,  and  the 
results  were  necessarily  discordant. 

§  101.  Modern  Changes  in  Married  Women's  Rights ;  How- 
to  be  Studied.  —  The  changes  to  which  we  shall  proceed  to 
direct  the  reader's  inquirj^  under  our  main  heading,  must 
be  studied  as  by  way  of  supplement  or  supersedure  to  the 
coverture  doctrine  set  forth  in  the  chapters  preceding.  As 
before,  these  changes  affect  the  wife's  debts  and  contracts, 
her  injuries  and  frauds,  and  her  personal  and  real  property. 
They  are  partly  of  equitable  and  partly  of  statutory  origin. 
But,  most  of  all,  they  impair  the  old  doctrine  which  treated 
the  husband  as  absolute  or  temporary  owner,  controller,  and 
manager  of  his  wife's  property  and  acquisitions,  by  virtue  of 
the  marriage,  and  create  in  favor  of  the  wife  what  is  com- 
monly known  in  these  days  as  her  separate  property. 

Here,  therefore,  as  on  most  points  relating  to  the  law  of 
husband  and  wife,  one  must  first  examine  the  old  common- 
law  or  coverture  doctrine,  and  then  perceive  how  far  modern 
equity  rules  or  the  local  legislation  may  have  varied  that  law. 
Such  changes  date  back  not  much  farther  than  a  century,  the 
most  radical  of  them  being  less  than  half  a  century  old ;  the 
equitable  changes  being  for  the  most  part  of  earlier,  and 
the  statutory  changes  of  later,  date,  and  the  law  of  England 
and  this  country  harmonizing  on  the  whole  subject,  at  the 
independence  of  tlie  American  colonies,  as  at  their  first  settle- 
ment. The  instance  will  be  found  rare  at  the  present  day, 
where  an  important  common-law  principle  respecting  the 
wife's  contracts,  torts,  property,  and  the  formalities  of  suit  is 
not  at  this  day  essentially  changed. 

§  102.  Modern  Equity  and  Statute  Doctrine  ;  England  and  the 
United  States.  —  As  preliminary  to  an  exposition  of  the  wife's 
separate  property,  we  may  observe  that  there  is  an  equitable 
doctrine  on  this  subject  and  a  statutory  doctrine.  The 
equitable  doctrine  is  the  prior  in  point  of  time,  and  is  chiefly 
the  work  of  English  cliancery  courts  ;  while  the  statutory 
doctrine,  which  is  of  later  date,  is  founded  in  the  married 
women's  acts,  now  familiar  in  our  several  States,  and  their 
judicial  construction.     The  equitable  doctrine  is  more  purely 

155 


§  103  THE  DOMESTIC   RELATIONS.  [PART   II. 

English ;  the  statutory  doctrine  more  purely  American,  — 
though  each  country  has  come,  ere  this  day,  to  borrow  in  this 
respect  from  the  other.  American  cases  frequently  distinguish 
still  between  an  equitable  separate  estate  and  a  statutory  sep- 
arate estate  in  favor  of  a  wife  ;  but  so  sweeping  is  the  latest 
legislation  in  most  States  that  such  a  distinction  becomes  of 
comparatively  little  consequence. 


CHAPTER  VIII. 

THE  wife's  SEPARATE  PROPERTY;   ENGLISH  DOCTRINE. 

§  103.  Origin  and  Nature  of  Separate  Estate  in  Chancery.  — 
In  the  present  chapter,  and  with  reference  to  Great  Britain, 
our  concern  is  almost  exclusively  with  the  remarkable  devel- 
ojjment  of  an  equitable  doctrine  of  separate  property.  Emer- 
ging from  coverture  and  the  common  law,  we  come  out  into 
the  light  of  equity  ;  and  here  all  things  assume  a  new  aspect. 
The  married  woman  is  no  longer  buried  under  legal  fictions. 
She  ceases  to  hold  the  strange  position  of  a  being  without  an 
existence,  one  whose  identit}^  is  suspended  or  sunk  in  the 
status^  of  her  husband  ;  she  becomes  a  distinct  person,  with 
her  own  property  rights  and  liabilities.  Her  condition  is  not  as 
independent  as  before  marriage  ;  this  the  very  idea  of  the  mar- 
riage relation  and  the  disabilities  of  her  sex  forbid.  But  she 
is  dependent  onl}'-  so  far  as  the  laws  of  nature  and  the  forms 
of  society  make  her  so ;  while  her  comparative  feebleness 
renders  her  the  special  object  of  chancer}^  protection,  when- 
ever the  interests  of  herself  and  her  husband  clash  together. 
She  may  contract  on  her  own  behalf ;  she  may  sue  and  be 
sued  in  her  own  name  ;  she  may  hold  lands,  goods,  and 
chattels  in  her  own  right,  which  property  is  known  as  the 
wife's  separate  estate,  or  estate  limited  to  the  wife's  separate 
use. 

The  doctrine  of  the  wife's  separate  estate  originated  in  the 
spreading  conviction  that  it  was  expedient  for  the  interests  of 
156 


CHAP,  viii.]       wife's  sepaeate  peopeety.  §  103 

society  that  means  should  exist  by  which,  upon  marriage, 
either  the  parties  themselves  by  contract,  or  those  who  in- 
tended to  give  bounty  to  a  family,  might  secure  property 
without  that  property  being  subject  to  the  control  of  the 
husband. 1  In  England  that  doctrine  was  established  more 
than  a  century  ago,  and  to  the  equity  courts  belong  the 
credit  of  the  invention. ^  The  equity  to  a  settlement,  of  which 
we  have  already  spoken,  is  part  of  that  doctrine.^  While  at 
common  law  the  separate  existence  of  the  wife  Avas  neither 
known  nor  contemplated,  equity  considered  that  a  married 
woman  was  capable  of  possessing  property  to  her  own  use, 
independently  of  her  husband ;  and  the  courts  gradually 
widened  and  developed  this  principle  until  it  became  fully 
settled  that,  however  the  wife's  property  might  be  acquired, 
whether  through  contract  with  her  husband  before  marriage, 
or  by  gift  from  him  or  from  any  stranger  independently  of 
such  contract,  equity  would  protect  it,  if  duly  set  apart  as 
her  separate  estate,  no  matter  though  the  husband  himself 
must  be  held  as  the  trustee  to  support  it."^ 

This  great  change  in  the  jurisprudence  of  England  was 
effected  by  a  few  great  men  without  any  help  from  the  legis- 
lature. The  court  of  chancery  in  this  as  in  other  respects 
recognized  its  true  function  of  making  the  law  work  justice 
by  accommodating  its  operation  to  the  altered  circumstances 
of  society.'^  Obscure  and  doubtful  indications  of  the  wife's 
separate  estate  are  found  as  early  as  the  reign  of  Queen  Eliza- 
beth. It  seems  to  have  been  plainly  recognized  by  Lord 
Nottingham,  Lord  Somers,  and  Lord  Cowper.  In  Lord  Hard- 
wicke's  time  it  was  perfectl}^  established  ;  and  Lord  Thurlow, 
in  sanctioning  the  clause  against  anticipation,  prevented  the 
wife  herself  from  destroying  the  fabric  which  had  been  reared 
for  her  benefit.^ 

I  Rennie  v.  Ritcliie,  12  CI.  &  Fin.  234  ;  *  Tullett  v.  Armstrong,  1  Beav.  21 ; 

Peachey  Mar.  Settl.  259.  Peachey   Mar.    Settl.   2G0,   and   cases 

~  Harvey  v.  Harvey,  1  P.  Wms.  124;  cited. 

Woodnieston    v.   Walker,   2   R.  &  M.  s  Macq.  Hus.  &  Wife,  284. 

205;    Tullett   i-.  Armstrong,    1   Beav.  6  See  Pybus  v.  Smith,  4  Bro.  C.  C. 

21.  485  ;    Tullett  v.  Armstrono^,  per  Lord 

3  Suprn,  §  85 ;  Sclioul.  Hus.  &  Wife,  Langdale,   1  Beav.  22 ;  Macq.  Hus.  & 

§§  160-162.                                             ,  Wife,  285. 

157 


§  105  THE  DOMESTIC   RELATIONS.  [PART  II. 

§  104.  Whether  Appointment  of  a  Trustee  is  Necessary.  — 
Where  property  comes  to  the  wife's  separate  use,  it  is  treated 
in  equity  as  trust  estate,  of  which  she  is  cestui  que  trust. 
Yet  it  is  not  actually  necessary  that  the  instrument  constitut- 
ing the  separate  use  should  itself  make  an  appointment  of 
trustees.  Formerly  the  rule  was  otherwise  ;  but  at  the  pres- 
ent day  equity  makes  the  husband  a  trustee  where  no  other 
holds  possession,  and  thus  supports  the  trust.^  And  where  a 
trustee,  regularly  appointed,  in  breach  of  his  duty,  and  with- 
out the  privity  of  the  wife,  pays  the  trust-money  over  to  the 
husband,  equity  follows  the  money  into  the  husband's  hands, 
and  makes  him  likewise  accountable  as  his  wife's  trustee. ^  It 
impresses  a  trust  upon  the  wife's  separate  estate  wherever 
such  estate  may  be  found.  But  while  the  appointment  of 
third  persons  as  trustees  is  not  essential  to  give  the  wife  a 
separate  estate,  or  a  separate  interest  in  any  particular  estate, 
it  is  certainly  desirable  on  many  accounts,  and  there  is  in  it 
this  marked  advantage,  that  the  property  is  made  thereby  more 
secure,  because  such  influence  of  the  husband  over  the  wife  is 
prevented  as  might  induce  her  to  abandon  the  property  to  him.^ 

§  105.  Coverture  applies  Prima  Facie  ;  How  Separate  Estate 
is  created.  —  Prima  facie  the  legal  ownership  of  property 
which  is  in  the  wife  at  the  time  of  marriage,  or  comes  to 
her  during  coverture,  vests  in  the  husband  under  his  marital 
right.  It  is  therefore  necessary  that  the  intention  to  establish 
a  separate  use  be  clearly  manifested,  else  courts  of  equity 
will  not  interpose  against  him.  No  technical  formalities  or 
expressions  are  required  ;  but  the  purpose  must  appear  be- 
yond the  reach  of  reasonable  controversy,  in  order  to  entitle 
the  wife  to  claim  the  property  as  her  own  in  derogation  of 
the  common  law.* 

1  Bennett  v.  Davis,  2  P.  Wms.  316  ;  phery  v.  Richards,  25  L.  J.  Eq.  444 ; 
Davison  y.  Atkinson,  5  T.  R.  435;  Mes-  s.  c.  2  Jur.  433;  Peachey  Mar.  Settl. 
senger  v.  Clarke,  5  Exch.  893  ;  Peachey  260  ;  Macq.  Hus.  &  Wife,  291.  Equity 
Mar.  Settl.  260  ;  Fox  v.  Hawks,  L.  R.  can  sanction,  on  behalf  of  a  married 
13  Ch.  D.  822.  woman,  the  compromise   of  a  suit  to 

2  Rich  V.  Cockell,  9  Ves.  375.  See  make  a  trustee  liable  for  breach  of 
also  Izod  V.  Lamb,  1  Cr.  &  J.  35.  trust   in   the   fund.     Wall    v.    Rogers, 

3  Newlands  v.  Paynter,  10  Sim.  377  ;  L.  R.  9  Eq.  58. 

8.  c.  on  appeal,  4  M.  &  Cr.  408 ;  Hum-         *  Macq.  Hus.  &  Wife,  307 ;  Tyler  v. 

158 


CHAP.  VIII.]         wife's    SEPAEATE   PROPERTY. 


106 


As  a  wife  is  only  made  a  party  to  a  suit  instituted   by 


Lake,  2  Russ.  &  M.  183 ;  Kensington  v. 
Dollond,  2  M.  &  K.  184  ;  Moore  v.  Mor- 
ris, 4  Drew.  37 ;  Peacliey  Mar.  Settl. 
279.  As  to  the  words  whicli  in  them- 
selves indicate  the  intention  of  creating 
a  separate  use,  there  liave  been  numer- 
ous decisions.  Among  them  the  fol- 
lowing expressions  are  held  sufficient : 
"  For  her  full  and  sole  use  and  bene- 
fit." Arthur  v.  Arthur,  11  Ir.  Eq.  511. 
"  For  her  own  sole  use  and  benefit." 
Ex  parte  Killick,  3  Mon.  D.  &  De  G. 
480.  "  For  her  sole  use."  Lindsell  i'. 
Thacker,  12  Sim.  178.  "  For  her  sole 
and  separate  use  and  benefit."  Archer 
V.  Rorke,  7  Ir.  Eq.  478.  "  For  her  sole 
and  sepnrate  use."  Parker  v.  Brooke, 
9  Ves.  583  ;  Adamson  v.  Armitage,  19 
Ves.  415.  "  For  her  sole  use  and  bene- 
fit."     V.  LjMie,  Younge,  562.    "  For 

her  own  sole  use,  benefit,  and  disposi- 
tion." Ex  parte  Ray,  1  Madd.  199. 
"  For  her  sole  and  absolute  use."  Da- 
vis V.  Prout,  7  Beav.  288.  "  For  her 
own  use,  and  at  her  own  disposal." 
Prichard  v.  Ames,  Turn.  &  Russ.  222. 
"  To  be  at  her  disposal,  and  to  do  there- 
with as  slie  shall  think  fit."  Kirk  v. 
Paulin,  9  Vin.  Abr.  96,  pi.  43.  "  Solely 
antj  entirely  for  her  own  use  and  bene- 
fit." Inglefield  v.  Coghlan,  2  Coll.  247. 
"  For  her  own  use,  independent  of  any 
husband."  Wagstaff  v.  Smith,  9  Ves. 
620.  "  Not  subjected  to  the  control  of 
her  husband."  Bain  v.  Lescher,  11 
Sim.  397.  "  For  her  own  use  and  bene- 
fit, independent  of  any  other  person." 
Margetts  v.  Barringer,  7  Sim.  482. 
"For  her  livelihood."  Darley  i\  Dar- 
ley,  3  Atk.  399.  And  see  Peachey 
Mar.  Settl.  279,  280;  Macq.  Hus.  & 
Wife,  308,  309.  "As  her  separate 
estate."  Fox  v.  Hawks,  L.  R.  13  Ch. 
D.  822.  "  To  receive  the  rents  while 
she  lives,  whether  married  or  single." 
Goulder  v.  Camm,  De  G.  F.  &  J.  146. 

So,  too,  the  intention  of  excluding 
the  husband's  marital  rights  may  be 
inferred  from  the  nature  of  the  pro- 
visions attached  to  the  gift ;  as  where, 
for  example,  the  direction  is  that  the 


property  shall  be  at  the  wife's  disposal, 
or  there  is  some  other  clear  indication 
that  such  was  the  donor's  intention. 
Prichard  v.  Ames,  Turn.  &  Russ.  223 ; 
Peachey  Mar.  Settl.  279.  Lord  Thur- 
low  once  decided  that  a  direction  "  that 
the  interest  and  profits  be  paid  to  her, 
and  the  principal  to  lier  or  to  her  order 
by  note,  or  writing  under  her  hand," 
created  a  trust  for  tlie  wife's  separate 
use.  Hulme  v.  Tenant,  1  Bro.  C.  C.  16. 
So  in  the  judgment  of  Sir  William 
Fortescue,  Master  of  the  Rolls,  did  the 
words  "  that  she  should  enjoy  and  re- 
ceive the  issues  and  profits  of  the 
estate."  Tyrrell  v.  Hope,  2  Atk.  501. 
"For  to  what  end  should  she  receive 
it,"  says  this  judge,  "if  it  is  the  prop- 
erty of  the  husband  the  next  mo- 
ment "? "  And  Lord  Loughborough 
gave  a  like  effect  to  a  direction  that 
certain  property  should  be  delivered 
up  to  a  married  woman  "  whenever  she 
sliould  demand  or  require  the  same." 
Dixon  V.  Olmius,  2  Cox,  414.  A  simi- 
lar construction  has  also  been  applied 
to  the  words,  "  to  be  laid  out  in  what 
she  (the  wife)  shall  think  fit."  Atch- 
erley  v.  Vernon,  10  Mod.  518.  See 
Blacklow  V.  Laws,  2  Hare,  52.  And  a 
legacy  to  a  married  woman,  "  her  re- 
ceipt to  be  a  sufiicient  discharge  to  the 
executors,"  has  been  held  sufiicient. 
Warwick  v.  Hawkins,  13  E.  L.  &  Eq. 
174.  A  legacy  added  by  a  codicil  to 
the  legacy  given  by  a  will  is  subject  to 
the  incidents  of  the  original  legacy  ; 
and  the  separate  use  may  be  extended 
by  construction  from  the  will  to  the 
codicil.     Day  v.  Croft,  4  Beav.  501. 

Yet,  on  the  other  hand,  tlie  form  of 
expression  will  go  far  towards  deter- 
mining whether  property  is  or  is  not 
limited  to  the  wife's  separate  use. 
Vice-Chancellor  Wigram,  in  a  case  be- 
fore him  not  many  years  ago,  was 
forced  to  admit  that  while  ruling  out 
certain  property  from  the  wife's  sep- 
arate use,  on  account  of  the  testator's 
insufficient  language,  he  had  a  strong 
opinion   that  he   decided  against  the 

159 


§105 


THE   DOMESTIC   EELATIONS. 


[part   II. 


her   husband   on   the   alleged   ground  of  her  having  sepa- 


real  intention  of  tlie  testator.  Black- 
low  V.  Laws,  2  Hare,  49.  It  is  to  be 
observed,  then,  that  courts  of  equity 
will  not  deprive  the  husband  of  his 
rights  at  law  unless  the  words  of  them- 
selves clearly  import  the  intention  to 
exclude  him.  Peachey  Mar.  Settl. 
281 ;  Tyler  v.  Lake,  2  lluss.  &  M.  188; 
Massey  v.  Parker,  2  M.  &  K.  181; 
Macq.  Hus.  &  Wife,  309.  A  mere  trust, 
tlieretbre,  to  pay  the  income  of  a  fund 
to  a  certain  married  woman,  or  to  her 
and  her  assigns,  is  not  sufficient  to  pre- 
vent the  marital  rights  from  attaching. 
Lumb  V.  Milnes,  5  Ves.  517  ;  Brown  v. 
Clark,  3  Ves.  16G;  Spirett  v.  Willows, 
11  Jur.  N.  s.  70.  jVor  is  a  devise  to  a 
certain  widow's  sole  use  and  benefit 
without  reference  to  a  future  husband. 
Gilbert  v.  Lewis,  1  De  G.  J.  &  M.  38. 
Even  a  gift  to  a  wife  "  for  lier  use  "  has 
been  held  not  a  sufficiently  unequivo- 
cal declaration  of  an  intention  to  create 
a  trust  for  the  separate  use  of  the  wife. 
Jacobs  V.  Amyatt,  1  Madd.  376,  n. ; 
Wills  V.  Sayers,  4  Madd.  411 ;  Roberts 
V.  Spicer,  5  Madd.  491.  Some  words 
have  greater  efficacy  than  others. 
Thus  it  has  been  said  that  the  word 
"  enjoy  "  is  very  strong  to  imply  a 
separate  use.  Sir  William  Fortescue, 
in  Tyrrell  v.  Hope,  2  Atk.  558.  And 
much  controversy  has  arisen  in  the 
English  chancery  courts  over  the  use 
of  the  word  "own"  as  synonymous 
with  "  sole,"  the  result  of  which  is  to 
establish  that  there  is  a  substantial  dis- 
tinction between  a  gift  to  a  wife  "for 
her  sole  use  "  and  a  gift  "  for  her  own 
use,"  or  "  for  her  own  use  and  benefit." 
See  Lord  Brougham's  judgment  in 
Tyler  v.  Lake,  ^2  Russ.  &  M.  187; 
Johnes  v.  Lockhart,  3  Bro.  C.  C.  38-3,  n. ; 
Peachey  Mar.  Settl.  282.  And  it  hav- 
ing been  decided  that  the  word  "own" 
had  no  exclusive  meaning,  it  was  next 
determined  that  a  trust  to  pay  the  pro- 
ceeds of  real  estate  into  the  proper 
hands  of  a  married  woman  for  her  own 
use  and  benefit  was  not  a  gift  to  the 
wife's  separate  use,  the  word  "  proper  " 

160 


being  the  Latin  form  of  the  word 
"  own,"  and  therefore  payment  into 
the  wife's  proper  hands  signifying  the 
same  thing  as  into  her  own  hands. 
Tyler  v.  Lake,  2  Russ.  &M.  187.  Lord 
Brougham  thus  in  effect  overruled  a 
decision  of  Lord  Alvanley,  who  had 
held  that  the  use  of  the  word  "  proper" 
would  create  a  separate  use.  Hartley 
V.  Hurle,  5  Ves.  545.  This  later  con- 
struction, coming  from  a  jurisdiction 
so  conclusive,  has  since  prevailed, 
though  not  without  some  expressions 
of  dissatisfaction  in  the  lower  courts. 
See  Vice-Cliancellor  Wigram,  in  Black- 
low  v.  Laws,  2  Hare,  49  :  Macq.  Hua. 
&  Wife,  309 ;  Peachey  Mar.  Settl.  282. 
And  again,  language  of  the  donor,  ex- 
pressive of  his  intent  to  limit  property 
to  the  wife's  separate  use,  may  be  con- 
trolled by  other  words  or  provisions  so 
as  to  negative  such  a  supposition. 
This  principle  was  applied  to  the  wife's 
disadvantage  in  a  case  where  others 
were  made  the  objects  of  the  bounty 
with  her.  Wardle  v.  Claxton,  9  Sim. 
524.  And  see  Gilchrist  i-.  Cator,  1  De 
G.  &  S.  188.  Yet  it  has  been  held  that 
a  gift  to  tlie  wife's  separate  use  was 
good,  although  the  support  and  educa- 
tion of  children  was  annexed  as  a 
charge  upon  it.  Cape  v.  Cape,  2  You. 
&  Coll.  Exch.  543.  And  see  n.  to  Macq. 
Hus.  &  Wife,  310.  The  expression 
"her  intended  husband"  may  apply 
to  a  second  husband,  where  there  are 
words  limiting  income  to  the  wife's 
separate  use  during  her  life,  for  this 
latter  expression  controls  the  former. 
Hawkes  v.  Hubback,  L.  R.  11  Eq.  5. 

Whether  the  word  "  sole  "  is  of  itself 
sufficient  to  create  a  separate  use  is 
doubtful.  Diflferent  opinions  have  been 
expressed  on  this  point.  But  in  a  re- 
cent case  before  Vice-Chancellor  Kin- 
dersley  the  word  "sole"  was  deemed 
insufficient,  in  a  devise  of  property  to 
a  female,  her  heirs,  executors,  adminis- 
trators, and  assigns,  "  for  her  and  their 
own  sole  and  absolute  use  and  benefit," 
to  create  a  separate  estate;  since  the 


CHAP,  viri.]       wife's  separate  peopeety.  §  106 

rate  estate,  in  regard  to  which  she  is  2^  feme  sole,  the  husband, 
by  making  her  a  part}^  admits  it  to  be  her  separate  estate.^ 

§  106.  Separate  Use  binds  Produce  of  Fund.  —  A  gift  of 
the  produce  of  a  fund  is  to  be  considered  a  gift  of  that 
produce  in  perpetuity ;  hence  it  is  a  gift  of  the  fund  itself, 
nothing  appearing  to  show  a  different  intention.  Therefore 
a  bequest  of  a  fund  to  a  woman,  with  the  interest  thereon, 
to  be  vested  in  trustees,  —  the  income  arising  therefrom  to  be 
for  her  separate  use  and  benefit,  —  vests  the  capital  for  her 
separate  use.^  Where  a  testator  simply  directs  the  invest- 
ment of  a  fund  in  trustees,  for  the  benefit  of  a  married 
woman,  independent  of  the  control  of  her  husband,  this  is 
enough  to  carry  the  whole  fund  to  her  separate  use.'^  So  it 
is  held  that  where  stock  was  given  to  trustees  upon  trust,  to 
pay  the  dividends  to  a  married  woman  for  her  separate  use, 
and  there  Avas  no  limitation  of  a  life  interest,  an  absolute 
interest  in  the  capital  passed  to  her,  which  she  could  dispose 
of  as  a  feme  sole^ 

It  is  fair  to  suppose  that  in  equity  the  wife's  separate  use 
binds  the  produce  of  the  fund  as  well  as  the  fund  itself. 
There  are  some  cases  decided  in  the  courts  of  common  law 
where  the  contrary  has  been  maintained,  and  to  this  effect, 
that,  although  a  wife  may  be  entitled  to  separate  property, 
the  dividends  arising  therefrom  vest  in  her  husband.^  This 
is  no  reason,  however,  why  the  equity  doctrine  should  not  be 
as  we  have  stated  ;  indeed,  if  it  were  otherwise,  as  an  Eng- 
lish writer  has  observed,  the  object  of  separate  use  would  be 
in  many  instances  frustrated.^  What  the  wife  saves  out  of 
her  separate  income,  too,  if  its  identity  be  properly  preserved, 

word  "sole,"  as  here  used,  had  refer-         3  gimons  v.  Howard,  1  Keen,  7,  per 

ence  not  only  to  the  female  herself,  hut  Lord  Langdale. 

to  her  heirs,  executors,  administrators,  *  5  Elton  v.  Shephard,  1  Bro.  C.  C. 

and  assigns,  who  certainly  could  not  he  532  ;  Haig  v.  Swiney,  1  Sim.  &  Stu.  487. 
considered  beneticiaries  under  any  such         5  Tugraan  v.   Hopkins,   4  Man.  & 

trust.  Lewis  v.  Mathews,  L.  R.  2  Eq.  Gr.  389  fCarne  i-.  Brice,  7  M.  &  W.  183. 
177.     And  see  Troutbeck  v.  Boughey,         "  See  Macq.  Hus.  &  Wife,  291,  and  n. 

L.  R.  2  Eq.  534.  And  see  dictum  of  Sir  Launcelot  Shad- 

1  Earl  V.  Ferris,  19  Beav.  69.  well,  in  Molony  v.  Kennedy,  10  Sim. 

2  Adamson  v.  Armitage,  19  Ves.  254  (quoted  ih.),  which  intimates  that 
416;  Macq.  Hus.  &  Wife,  311  ;  Trout-  tliis  is  the  equity  doctrine;  per  Lord 
beck  I.'.  Boughey,  L.  R.  2  Eq.  534.  Hardwicke,  Churchill  v.  Dibbiu,  9  Sim. 

11  161 


§  107  THE   DOMESTIC   RELATIONS.  [PART   U. 

is  in  equity  her  separate  estate.^  It  must  only  be  observed 
that  income  or  produce  of  the  fund,  if  once  in  the  husband's 
hands,  may  readily  be  presumed  to  have  been  bestowed  upon 
him  by  the  wife,  either  for  himself  or  the  family  expenses. 

§  107.  Separate  Use  exists  only  during  Marriage  ;  Exceptions  ; 
Ambulatory  Operation.  —  The  quality  of  separate  estate  ceases 
on  the  death  of  the  wife ;  and,  if  her  husband  survives  her, 
he  becomes  entitled  to  the  property  as  though  it  had  never 
been  settled  to  her  separate  use.  For  the  separate  use  was 
created  onl}'-  for  the  marriage  state,  and  was  not  designed 
to  extend  beyond  the  dissolution  of  marriage,  or  when  the 
necessity  of  the  trust  should  be  no  longer  felt.  Thus  chases 
in  possession  settled  to  the  wife's  separate  use  vest  in  the 
husband  absolutely  upon  his  survivorship.^  The  wife's  sepa- 
rate choses  in  action  may  be  recovered  by  him  in  his  right  as 
her  administrator.^  So,  doubtless,  her  separate  chattels  real 
go  to  the  husband  as  survivor.  In  short,  the  wife's  separate 
property,  upon  the  wife's  death,  is  freed  from  its  peculiar  in- 
cidents, and  becomes  like  any  other  estate  of  hers  which  may 
remain  at  her  decease.*  And  it  seems  clear  that  the  husband 
may  be  tenant  by  the  curtesy,  as  usual,  if  not  expressly  ex- 
cluded from  all  marital  interest.^ 

Yet  the  wife  may  defeat  her  husband's  claim  after  her 
death  by  exercising  her  power  of  disposition  during  her  life- 
time,—  a  power  which  is  recognized  in  a  married  woman  so 
far  as  her  separate  property  is  concerned.^  So,  too,  by  the 
terms  of  the  trust,  the  husband's  rights  on  her  decease  may 
be  prevented  from  attaching.'' 

447,  n.  Co??<ra,  Peachey  Mar.  Settl.  263,  ^  Lushington  v.  Sewell,  1  Sim.  548; 

where  cases  are  cited  which  do  not  sup-  Roberts  v.  Dixwell,  1  Atk.  606,  per  Lord 

port  the  statement  in  the  te.xt.  Hardwicke;   Macq.  IIus.  &  Wife,  287  ; 

1  Barrack  v.  M'Culloch,  3  Kay  &  J.  Appleton  v.  Rowley,  L.  R.  8  Eq.  139; 
110 ;  Brooke  ?•.  Brooke,  4  Jur.  n.  s.  Cooper  v.  Macdonald,  L.  R.  7  Ch.  D. 
472.  288.     Otlierwise,  where  by  the  terms 

2  Molony  v.  Kennedy,  10  Sim.  254.      of  the  separate  use  the  husband  is  ex- 
8  Proudley  v.  Fielder,  2  Myl.  &  K.     eluded  from  curtesy.     Moore   v.  Web- 

57 ;  Drury  v.  Scott,  4  You.  &  Coll.  Ch.  ster,  L.  R.  3  Eq.  267. 

264 ;  Stead  v.  Clay.  1  Sim.  294.  6  Macq.  Hus.  &  Wife,  285.  See  post, 

*  Macq.  Hus.  &  Wife,  285 ;  Peachey  §  110. 

Mar.  Settl.  278;   Sloper  v.  Cottrell,  6  "  Johnstone  v.  Lurab,  15  Sim.  308. 

El.  &  Bl.  501 ;  Bird  v.  Pegrum,  13  C.  B.  Thus,  where  a  wife  entitled  to  separate 

650;  8.  c.  17  Jur.  579.  property  for  life,  under  a  settlement 

162 


CHAP.  VIII.]         wipe's   separate  PROPERTY.  §  108 

Since  the  separate  use  can  exist  only  in  the  marriage  state, 
it  may  sometimes  have  an  ambulatory  operation,  so  as  to  be 
effectual  according  as  the  woman  happens  at  the  time  to  be 
covert  or  sole.  Supposing,  then,  a  gift  be  made  to  the  sep- 
arate use  of  a  woman  who  is  single  at  the  time  the  gift 
takes  effect,  it  is  clear  that  she  shall  enjoy  the  gift  abso- 
lutely and  without  restraint.  But  if  she  afterwards  mar- 
ries, will  the  separate  use  operate?  It  will,  unless  by  the 
terms  of  her  marriage  settlement  she  expressly  renounces  it.^ 
Supposing,  however,  she  outlives  her  husband,  the  separate 
use  ceases  as  in  other  cases,  since  it  can  only  be  effectual 
during  coverture.  But  if  she  marries  again,  the  separate 
use,  consistently  with  its  intention,  revives  once  more ;  and 
so  onward,  from  time  to  time,  ceasing  and  reviving  alter- 
nately upon  each  alteration  of  her  personal  condition,^  with, 
however,  this  reservation,  that  if  confined  by  intendment  to  a 
particular  husband  or  a  particular  coverture,  the  separate  use 
ceases  to  operate  when  that  marriage  ends.^ 

§  108.  "Wife's  Right  to  renounce  Separate  Use,  &o.  —  A  single 
woman,  having  a  gift  expressed  to  be  to  her  separate  use, 
may  renounce  such  separate  use  upon  her  marriage.  This 
will  be  readily  admitted.  Yet  the  courts  construe  an  act  of 
this  sort  strictly.*  The  evidence  must  be  clear  in  all  cases, 
that  a  single  woman  marrying  has  renounced  her  separate 
use  ;  for  it  will  not  be  presumed  that  she  means,  by  the  mere 

which  directed  that  all  the  trust  prop-  while   the  latter  was  bound    by    the 

erty,  and  all  the  income  thereof  "  re-  trusts  of  the  deed  as  the  result  of  in- 

maining  unapplied  "at  her  death,  should  come  "remaining  unapplied"   at  her 

go  in  a  certain  manner,  left  her  hus-  death.     lb. 

band  some  years  before  her  death  ;  and         ^  Tullett  v.  Armstrong,  1  Beav.  1 ; 

the  trustees  received  the  income  regu-  Anderson   v.   Anderson,  2   Myl.  &  K. 

larly,  and  paid  it  into  a  bank  in  their  427 ;  Macq.  Hus.  &  Wife,  305. 
own  names,  with  her  privity,  making  ^  Macq.  Hus.  &  Wife,  300 ;  Tullett 

remittances  to  her  as  she  required  mon-  v.  Armstrong,  1  Beav.   1,  affirmed  by 

ey;    and   upon   the   wife's   death   the  Lord   Cottenham,   4  Myl.  &  Cr.  377; 

sum   of  .£888   was   found   among  her  Hawkes  v.  Hubback,  L.  R.  11  Eq.  5. 
effects,  and  a  balance  of  £2,049  accu-         3  2  Perry  Trusts,  §§  652,  053,  and 

mulated  income  stood  to  the  credit  of  cases  cited ;   Benson  v.  Benson,  6  Sim. 

the  trustees  in  the  bank ;  it  was  held  26 ;  1  Ch.  Ca.  307 ;   1  Vern.  7 ;   Moore 

by   the  Vice   Chancellor  of   England  v.  Harris,  4  Dr.  33. 
that  the  former  went  to  the  surviving         *  Johnson  v.  Johnson,  1  Keen,  648 ; 

husband  by  virtue  of  his  marital  right,  Macq.  Hus.  &  Wife,  806. 

163 


§  109  THE   DOMESTIC   RELATIONS.  [PART   II. 

fact  of  matrimony,  to  relinquish  her  control  of  the  property. 
But  antenuptial  settlements  maybe  made  on  reasonable  terms 
by  the  parties  contemplating  marriage.  And  there  is  nothing 
to  prevent  the  operation  of  a  trust  for  separate  use  from  being 
confined  to  a  particular  coverture,  where  all  concerned  are  so 
minded.  In  such  cases,  however,  the  wife  marrying  again  can 
always  stipulate  for  her  separate  use.^ 

It  is  possible  that  a  provision  for  the  wife's  separate  use 
may  fail,  as  against  third  parties,  hoyia  fide  purchasers,  wher- 
ever the  husband  can  dispose  of  the  property  without  their 
having  notice  of  the  trust.^ 

§  109.  Separate  Use  and  the  Marital  Obligations.  —  It  WOuld 
appear  to  be  the  English  doctrine  that  the  marital  obligations 
of  the  husband  are  not  essentially  altered  by  her  right  to 
separate  property.  Thus,  it  is  held  that  the  wife  is  not 
bound  to  maintain  her  husband  out  of  her  separate  fortune, 
nor  to  bring  any  part  of  it  into  contribution  for  family  pur- 
poses.^ And  there  seems  to  be  no  legal  authority  to  support 
the  notion  that  the  husband's  liabilities  on  her  general  debts 
are  thereby  altered  during  their  joint  lives.'*  The  common- 
law  liabilities  of  the  husband,  to  be  sure,  rest  in  great  meas- 
ure upon  his  right  to  his  wife's  property ;  yet  we  may  admit 
that  it  would  be  difficult  to  adjust  any  new  rule  except  upon 
partnership  principles.  If  one  marries  a  rich  wife,  therefore, 
who  chooses  to  hoard  her  savings  by  herself,  bequeath  all  to 
others,  and  compel  him,  a  poor  man,  to  pay  for  everything 
she  or  the  children  need,  all  their  lives,  he  assuming  her 
antenuptial  debts  besides,  it  is  possible  that  even  equit}^  will 
den}-  him  relief.  We  here  suppose  that  neither  legislation 
nor  the  wife's  own  disposition  of  her  separate  property  affects 
the  question. 

Moreover,  the  wife  is  not  bound  to  maintain,  educate,  or 
provide  for  her  children  out  of  her  separate  property ;  and 

1  Macq.   Hus.   &  Wife,    .307.      See         ^  Lamb  v.  Milnes,  5  Ves.  520. 
Knight  V.  Knight,  6  Sim.  121 ;  Bradley         *  See  Macq.  Hus.  &  Wife,  288.    But 
V.  Hughes,  8  Sim.  149 ;  Benson  v.  Ben-  see  infra,  chapters  9-12.    In  re  Baker's 
son,  c'^Sim.  126.  Trusts,  L.  R.  13  Eq.  168. 

2  Parker  v.   Brooke,    9   Ves.   583; 
Macq.  Hus.  &  Wife,  291. 

164 


CHAP.  VIII.]         wife's   separate  PROPERTY.  §  110 

even  though  she  elope  from  her  husband,  equity  will  not  lay- 
hold  of  her  estate  for  that  purpose.^  And  yet,  whenever  a 
settlement  of  the  wife's  equity  is  decreed,  where  the  hus- 
band or  his  legal  representative  seeks  to  recover  for  himself 
her  choses  in  action,  the  children  of  the  marriage  are  included 
within  its  benefits  ;  though,  to  be  sure,  the  wife  may  waive 
the  claim  altogether  without  reference  to  them.^ 

§  110.  Clause  of  Restraint  upon  Anticipation.  —  The  clause 
of  restraint  upon  anticipation  is  an  important  element  in  the 
doctrine  of  the  wife's  separate  use,  as  administered  in  Eng- 
land. This  clause  was  sanctioned  by  Lord  Thurlow ;  ^  is 
frequently  to  be  met  with  in  modern  conveyances ;  and  is 
pronounced  by  Mr.  Macqueen,  and  by  eminent  English  ju- 
rists, a  salutary  clause  which  takes  from  the  wife  the  power  of 
bringing  rain  upon  herself.^  The  restraint  applies  not  only 
to  personal  but  also  to  landed  property.^  It  may  be  imposed 
equally  upon  estates  for  life  or  in  fee.^ 

The  name  of  this  important  clause  originates  in  the  circum- 
stances under  which  it  was  first  applied.*  The  general  pur- 
port of  this  expression  is  that  the  wife  shall  be  prohibited  the 
anticipation  of  the  income  of  her  separate  property  or  the 
anticipation  of  the  capital  of  the  fund.  Yet  the  word  "  anti- 
cipation "  need  not  be  used  in  clauses  of  this  sort,  nor  is  any 
particular  form  of  expression  necessary.^  Like  the  separate 
use  itself,  this  clause  of  restraint  on  anticipation  exists  only 
in  the  marriage  state  ;  it  does  not  prevent  or  interfere  with  the 
receipt  of  regular  income  ;  and  property  vested  in  a  single 

1  Hodgden  v.  Hodgden,  4  CI.  &  Fin.  Hug.  &  Wife,  312 ;  Peachey  Mar.  Settl. 
32.3,  reversing  tiie  decree  of  the  court  284.  Nor  can  she  join  her  husband  in 
^elovv.  a  power  of  attorney  to  receive  or  sue 

2  See  Schoul.  Hus.  &  Wife,  §§  160-  for  moneys  tied  up  by  this  clause. 
162 ;  supra,  §  85,  as  to  the  wife's  equity  Kenrick  v.  Wood,  L.  R.  9  Eq.  333. 

to  a  settlement.  6  lb. 

3  Miss  Watson's  Case.     See  Pybus  ^  See  Pybus  v.  Smith,  3  Bro.  C.  C. 
V.  Smith,   3   Bro.  C.    C.  340,  n.     This  340  ;  -Jodrell  v.  Jodrell,  9  Beav.  59. 
doctrine    was    afterwards    affirmed   in  ^  pgj.  j^ord  Cranworth,  In  re  Ross's 
Jackson  v.  Hobhouse,  2   Mer.  487,  by  Trust,  1  Sim.  199  ;   Doolan  v.  Blake,  3 
Lord  Eldon.  Ir.  Ch.  349;  Peachey  Mar.   Settl.  287; 

*  See  Macq.  Hus.  &  Wife,  312.  Tulletti;.  Armstrong,  1  Beav.  1 ;  Steed- 

5  Baggett  V.  Meux,  1  Phil.  627,  per  man  v.  Poole,  6  Hare,  193 ;  Schoul. 
Lord   Lyndhurst;   1  Coll  138;   Macq.     Hus.  &  Wife,  §  202,  and  cases  cited. 

165 


§  111  THE  DOMESTIC   BELATIONS.  [PAET  II. 

woman  she  may  dispose  of  absolutely,  despite  such  limitation, 
so  long  as  she  remains  unmarried ;  but  upon  her  coverture, 
while  retaining  such  property,  the  separate  use  and  the 
restraint  upon  anticipation  attach  and  become  effective  to- 
gether, cease  together  upon  her  widowhood,  and  revive  to- 
gether upon  her  remarriage.^ 

§  111.  Separate  Use  in  Common-Law  Courts;  English  Married 
"Womens'  Act.  —  Although  the  wife's  separate  use  is  the  crea- 
ture of  equity,  and  specially  consigned  to  its  watchful  keep- 
ing, courts  of  law  will  sometimes  afford  it  protection.  This 
seems  to  be,  however,  only  in  cases  where  a  trustee  is  inter- 
posed to  hold  the  legal  estate  ;  for  since  the  common-law 
courts  maintain  their  own  maxims,  there  should  be  some 
person  designated  to  hold  the  fund  for  the  wife ;  and  such 
person  will  be  considered  as  the  legal  owner  so  as  to  save  the 
property  from  attachment  and  sale  for  the  husband's  debts.^ 

Under  a  recent  act  of  1870  important  changes  are  made 
with  the  view  of  creating  a  statutory  separate  estate  in 
married  women ;  these,  however,  do  not  as  yet  attract  much 
judicial  comment.^ 

1  Tullett  V.  Armstrong,  1  Beav.  1 ;  certain  formalities,  her  property  in  the 

4  Myl.  &  Cr.  377  ;  Schoul.  Hus.  &"Wife,  funds,  joint-stock  companies,  &c. ;  per- 

§  202 ;   Clarke  v.  Jaques,  1  Beav.  36 ;  sonal  property  coming  to  her  not  ex- 

Dixon  V.  Dixon,  1  Beav.  40.  ceeding  £200  ;  rents  and  profits  of  her 

-  See  Izod  v.  Lamb,  1  Cr.  &  J.  35;  freehold  propert}' ;  policies  of  insurance 

Davison    v.    Atkinson,   5  T.   R.  434 ;  for  benefit  of  wife  (trusts  for  benefit  of 

Dean  v.  Brown,  2  Car.  &  P.  62 ;  Macq.  wife  and  children  being  also  permitted). 

Hus.  &  Wife,  291.  This  moderate  act  is  doubtless  the 

3  See  Act  33  &  34  Vict.  c.  93(1870);  result  of  influences  such  as  were  first 

Queen  v.  Carnatic  R.  R.  Co.,  L.  R.  8  Q.  manifested  in  the  United  States.     The 

B.  299.     This  act  declares  that  wages  American  legislation   on   this   subject 

and  earnings  of  a  married  woman  shall  long    antedates    the    English.     Other 

be   her   separate  property ;    also,   her  provisions  are  found  in  this  act,  whose 

deposits  in  savings  banks  (with  a  pro-  appropriate  consideration  belongs  to  a 

viso);  also,  upon  the  observance  of  later  chapter. 

166 


CHAP.  IX.]  wife's    separate    PROPERTY.  §  112 


CHAPTER  IX. 

THE    WIEE's    separate    PROPERTY ;    AMERICAN"    DOCTRINE. 

§  112.  Early  American  Rule.  —  The  doctrine  of  the  wife's 
separate  estate  is  one  of  peculiar  growth  and  development  in 
this  country,  though  doubtless  originating  in  the  maxims  of 
the  English  chancery,  and  deriving  much  of  its  strength  from 
the  splendid  accomplishments  of  Langdale,  Thurlow,  and 
Eldon,  in  their  own  land.  What  such  men  and  their  succes- 
sors effected  b}^  judicial  policy  we  have  carried  into  our 
statutes  ;  nay,  we  have  gone  further.  In  England  the  equita- 
ble rights  of  married  women  are  the  triumph  of  the  bench  , 
with  us  the  early  efforts  of  the  bench  have  been  eclipsed  by 
the  later  achievements  of  the  legislature,  and  the  judge  fol- 
lows the  lawgiver  to  restrain  rather  than  enlarge.  There,  in 
historical  sequence,  it  was  proper  to  study  first  the  equitable 
doctrine  of  separate  property ;  here  the  statutory  doctrine 
may  well  take  precedence. 

When  this  country  was  first  settled,  the  separate  use  was 
but  little  understood  in  England.  Its  development  there 
was  gradual,  and  its  final  establishment  of  a  later  date.  Our 
ancestors  brought  over  the  common  law  with  them  ;  but  for 
equity  they  had  little  respect.  True,  it  cannot  be  said  that, 
by  the  jurisprudence  of  a  single  State,  property  bestowed 
upon  a  married  woman  to  her  separate  use,  free  from  the 
control  and  interference  of  her  husband,  would  remain  subject, 
notwithstanding,  to  his  marital  dominion  ;  but  prior  to  the 
late  married  women's  acts  there  were,  in  many  States,  no 
judicial  precedents  to  combat  such  an  assumption.  That 
such  trusts  might  be  created  was  not  denied  ;  but  whether 
there  were  courts  with  authority  to  enforce  them  appeared 

167 


§  112  THE   DOMESTIC    RELATIONS.  [PART   II. 

frequently  doubtful.^  In  the  New  England  States  scarcely  a 
vestige  of  the  separate  use  was  to  be  found. ^  New  York, 
with  such  eminent  chancellors  as  Kent  and  Walworth,  took 
the  lead  in  building  up  an  equity  system  parallel  with  that  of 
England  ;  and  in  the  reports  of  this  State  are  to  be  found 
most  of  the  leading  cases  and  the  ablest  discussions  of  what 
may  be  termed  American  chancery  doctrines.  New  Jersey 
recognized  the  separate  use,  and  her  chancery  court  exercised 
liberal  powers.  In  Pennsylvania  the  doctrine  was  recognized 
to  some  extent.  The  courts  of  Maryland,  Virginia,  and  the 
Southern  States  generally,  had  frequent  occasion  to  apply  the 
separate-use  doctrine  ;  none  more  so  than  those  of  North  and 
South  Carolina.  And  it  may  be  remarked  that  the  aristo- 
cratic element  of  society  in  that  section  of  the  country,  also 
a  prevalent  disposition  for  family  entails,  marriage  settle- 
ments, and  fetters  upon  the  transmission  of  landed  property, 
aided  much  in  developing  therein  the  English  chancery  sys- 
tem. So  was  it  in  Kentucky  and  Tennessee,  States  founded 
upon  like  institutions.  But  as  to  Ohio,  Indiana,  Illinois,  and 
the  other  States  erected  from  what  was  formerly  known  as 
the  Northwest  Territory,  society  was  modelled  more  after 
New  England,  and  we  find  no  clear  recognition  of  the  wife's 
equitable  separate  use.  Louisiana,  and  such  contiguous  States 
as  were  originally  governed  by  French  and  Spanish  laws  had 
more  or  less  of  the  civil  or  community  system  ;  and  to  these 
States  English  equity  maxims  had  at  best  only  a  limited 
application.  Such,  then,  is  the  wife's  separate  use,  viewed 
in  the  light  of  judicial  precedents,  as  known  in  the  United 

'■  It  is  true  that  the  general  recogni-  cially  favored  chancery  jurisprudence, 

tion  here  of  the  wife's  separate  use  lias  The  want  of  a  general  recognition  of 

been    presumed    by   our    text-writers,  the  wife's  separate  use,  as  unfolded  in 

See   2   Kent   Com.  162  ;    Reeve  Dom  England,  aids  in  explaining  the  curious 

Rel.  162  ,  2  Story  Eq.  Juris.   §   1378  et  fact    that   our    States  were  legislated 

seq.     We   confine   our   observation    to  into  a  system  which  the  English  clian- 

judicial  precedents.     What  Chancellor  eery  had   felt   competent   to   rear  un- 

Kent  has  to  say  on  the  American  equity  aided 

doctrines  in  his  work  must  be  taken  by  -  Jones  v.  iEtna  Ins.  Co.,  14  Conn, 

the  general  student  with  some  qiialifi-  501,  intimated  that  the  married  woman 

cations,  inasmuch  as  the  learned  writer  could  not,  in  Connecticut,  be  the  inde- 

draws  largely  upon  his   judicial  opin-  pendent  owner  of  property.     But  see 

ions  rendered  in  a   State  which  espe  Pinney  v.  Fellows  15  Vt.  525  (1843). 

168 


CHAP.  IX.]  wife's    separate    PROPERTY.  §  113 

States  until  very  nearly  the  middle  of  the  nineteenth  cen- 
tury.i 

But  where  recognized  and  enforced  at  all,  the  strict  Am- 
erican rule  Avas  borrowed  from  that  of  England,  and  such, 
too,  has  been  the  later  development,  as  we  shall  show  here- 
after.2 

§  113.  The  Late  Married  Women's  Acts;  Social  Revolution. — 
The  wife's  separate  use,  as  an  American  system,  or  rather  as 
the  system  of  certain  American  States,  had  thus  progressed 
when  our  local  legislatures  took  the  whole  subject  actively  in 
hand.  The  American  equity  courts  had  followed  the  English 
precedents  pretty  closely,  but  without  displaying  the  same 
vigor  and  boldness.  None  of  our  reported  decisions  on  the 
subject  of  the  wife's  equitable  separate  property  had  attracted 
popular  attention  or  served  to  bring  out  the  discussion  of 
strong  leading  principles,  though  covering  a  period  of  sixty 
years  down  to  nearly  the  middle  of  the  present  century. 
During  the  twenty-five  years  preceding  1848,  a  change  in 
public  opinion  had  been  gradually  wrought  in  this  country 
and  in  England,  though  with  us  more  rapidly  than  abroad. 
The  married  woman  of  America  turned  to  the  legislature 
rather  than  the  courts  of  her  State  for  a  more  complete  mari- 
tal independence,  for  the  right  to  control  her  own  property, 
for  freedom  from  the  burdens  of  coverture.  In  shaping 
popular  sentiment,  doubtless,  the  annexation  of  territory 
lately  governed  b}^  the  principles  of  Roman  law  had  con- 
siderable influence,  particularly  in  the  States  adjacent  to 
Louisiana ;  still  more  in  a  national  sense  did  our  rapid  ad- 
vancement as  a  self-governed  nation,  and  the  spread  of  public 
education,  of  independence  in^  life  and  manners,  and  of  equal 
social  intercourse  of  the  sexes,  help  on  the  new  reform.     The 

1  See  U.  S.  Eq.  Dig.  Hus.  &  Wife,  ren  u.  Haley,  1  S.  &  M.  CIi.  647;  Ham- 

12 ;  Reade  v  .  Livingston,  3  Jolins.  Ch.  ilton  v.  Bishop,  8  Yerg.  33 ;  Griffith  v. 

481;   Meth.   Ep.   Church   v.  Jaques,  1  Griffith,  5  B.  Monr.  113;  McKennan  u. 

Johns.    Ch.   65;  Rogers   v.   Rogers,   4  Pliillips,  6  Whart.  571  ;  Gray  i-.  Crook, 

Paige,  516  ;  Vernon  v.  Marsh,  2  Green  12  Gill  &  J.  236 ;  Howard  v.  Menifee, 

Ch.  502  ;  Steel  r.  Steel,  1  Ired.  Eq.  452  ;  5  Pike,  668. 

Jackson  v.  McAliley,  Speers  Eq.  303 ;         ^  See  post,  as  to  equitable  separate 

Boykin  v.  Ciples,  2  Hill  Ch.  200,  204 ;  property   of   married   women,   in  tliis 

Hunt  V.  Booth,  1  Freem.  Ch.  215 ;  War-  chapter. 

169 


§  113  THE  DOMESTIC   RELATIONS.  [PAET  H. 

year  1848  saw  a  wondrous  revolution  effected  in  the  foremost 
States  of  this  Union  as  to  the  property  rights  of  married 
women ;  and  this  revolution  has  since  extended  to  every  sec- 
tion of  the  country.  The  influence  of  these  changes  has  also 
been  felt  abroad  ;  and  a  like  reform  was  pressed  in  the  Eng- 
lish Parliament  about  1870,  whose  immediate  result  was  the 
statute  to  wliicli  we  have  already  alluded.^ 

In  1821  the  legislature  of  Maine  had  authorized  the  wife, 
when  deserted  by  her  husband,  to  sue,  make  contracts, 
and  convey  real  estate  as  if  unmarried,  prescribing  the 
mode  of  procedure  in  such  cases.  A  like  law  previously 
existed  in  Massachusetts.^  These  appear  to  have  been  the 
earliest  of  the  married  women's  acts,  properly  so  called :  the 
first-fruits  of  the  modern  agitation  on  woman's  rights.  The 
example  of  Massachusetts  and  Maine  in  this  respect  was 
soon  imitated  elsewhere.  New  Hampshire,  Vermont,  Ten- 
nessee, Kentucky,  and  Michigan,  all  passed  important  laws  of 
a  similar  character  before  1850.  The  independence  of  mar- 
ried women  whose  husbands  were  convicts,  runaways,  and 
profligates  became  thus  the  first  point  gained  in  the  new 
system.  In  Massachusetts  and  Rhode  Island  the  wife's  sep- 
arate use  in  life-insurance  contracts  for  her  benefit  was  an 
object  of  special  solicitude  ;  then,  in  1845,  the  former  State 
turned  its  attention  further  to  a  public  recognition  of  mar- 
riage settlements  and  trusts  for  the  wife's  separate  benefit, 
extending  the  equity  jurisdiction  of  its  courts  for  that  pur- 
pose.^ The  right  of  a  married  woman  to  dispose  of  her 
property  by  will  was  legalized  in  Illinois,  Pennsylvania, 
Michigan,  and  Connecticut  about  the  same  time.  In  Con- 
necticut, Ohio,  Indiana,  and  Missouri,  the  first  reforms  appear 
to  have  been  directed  towards  exempting  the  wife's  property 


1  See  3  Juridical  Society  Papers  Rhode  Island  in  1844  made  similar 
(1870),  part  17 ;  Act  33  &  34  Vict.  c.  enactments.  Tliese  are  indications  of 
93,  1870,  under  §  111  supra.  what  the  text  has  already  stated;  that 

2  See  Rev.  Sts.  Maine  (1840),  p.  trusts  for  separate  use  and  equity  ju- 
841;  Rev.  Sts.  Mass.  (1836),  pp.  485,  risdiction  on  the  wife's  behalf  were 
487.  little  recognized  in  that  section  when 

3  A  New  Hampshire  act  in  1846  cop-  the  married  women's  agitation  com- 
ied  these  provisions  ;  and  a  statute  of  menced  in  the  United  States. 

170 


CHAP.  IX.]  wife's   &EPAEATE   PKOPEETY.  §  113 

from  liability  for  her  husband's  debts,  rather  than  giving  her 
a  complete  dominion  over  it.^ 

The  Roman  principle  of  an  independent  estate  in  the  wife, 
as  modified  by  the  more  modern  French  and  Sj^anish  com- 
munity law,  prevailed  in  Louisiana  at  the  time  of  its  admis- 
sion into  the  Union ;  and  like  traces  appear  in  the  legislation 
of  Florida,  Arkansas,  Texas,  and  other  adjacent  States  for- 
merly under  French  and  Spanish  rule.  So  was  the  doctrine 
of  separate  estate  promulgated  by  Mississippi  statute  as  early 
as  1839.2  And  in  other  Southern  States,  as  Alabama  and 
North  Carolina,  where  chancery  jurisprudence  was  well 
established,  appeared  laws  investing  the  courts  with  larger 
powers  in  matters  of  this  sort.^  Alabama  and  Mississippi 
appear  to  have  first  postponed  the  husband's  liability  for 
his  wife's  antenuptial  debts  to  her  separate  estate.^ 

But  the  sweeping  changes  effected  by  the  legislature  of 
New  York  in  1848  deserve  more  than  a  passing  notice.  The 
debates  of  the  constitutional  convention  of  that  State  in  1816 
•evinced  the  growing  desire  for  a  radical  reform  in  the  prop- 
erty rights  of  married  women ;  and  the  advocates  of  the 
movement,  failing  in  their  attempt  to  secure  an  article  of 
amendment  to  the  State  constitution  on  their  behalf,  next 
addressed  themselves  to  the  legislature,  and  with  success. 
On  the  7th  of  April,  1848,  was  enacted  a  law  "  for  the  more 
effectual  protection  of  married  women,"  which  provided  that 
the  real  and  personal  property  of  any  female  already  married, 
or  who  may  hereafter  marry,  which  she  shall  own  at  the  time 
of  marriage,  and  the  rents,  issues  and  profits  thereof,  shall 
not  be  subject  to  the  disposal  of  her  husband,  nor  be  liable 
for  his  debts,  and  shall  continue  her  sole  and  separate  prop- 
erty as  if  she  were  a  single  female  ;  and  that  any  married  fe- 
male may  lawfully  receive  and  hold  property  in  like  manner 

1  See  2  Bright  Hus.  &  Wife.  Am.  settled  territory  surrounding  it.  The 
ed.  1850,  p.  627  et  seq.,  where  married  codes  of  these  States  were  all  disfig- 
wome«'s  acts  are  cited  by  Mr.  Lock-  ured  by  "  chattel "  provisions,  which 
wood;  2  Kent  Com.  130,  n.  deti-acted  much  from  the  merits  of  a 

2  See  2  Bright,  ib.    The  influence  of  policy  otherwise  humane  to  tlie  wife. 
a  large  comrrercial  city  like  New  Or-  3  2  Bright,  ib. 

leans  was  doubtless  felt  in  the  sparsely         <  Ib.  (1S46). 

171 


§113 


THE  DOMESTIC   RELATIONS. 


[part  n. 


from  any  person  other  than  her  husband,  whether  by  gift, 
grant,  devise,  or  bequest.  This  statute,  passed  at  such  a  time 
by  the  foremost  State  in  the  Union,  —  a  State  thoroughly 
northern  in  its  institutions,  while  the  recognized  champion  of 
chancery  principles,  —  could  not  fail  to  make  a  deep  national 
impression.^  A  parallel  movement  had  meanwhile  progressed 
in  Pennsylvania ;  and  in  that  State  an  act  of  the  legislature, 
dated  only  four  days  later,  conferred  substantially  the  same 
rights  of  property  upon  married  women,  though  expressed  in 
different  language.^ 

From  this  time  forth  the  revolution  became  rapid,  and  has 
since  extended  to  all  the  States,  Virginia  being  the  last  to 
yield.  And  the  work  of  legislative  change  still  goes  on. 
Scarcely  a  year  passed  between  1850  and  1870  without  some 
new  married  women's  acts  added  to  the  local  statute  books  ;^ 


1  We  give  the  substance  rather  than 
the  language  of  this  statute.  See  2 
Bright  Hus.  &  Wife,  Am.  ed.  1850, 
Lockvvood's  note,  581  et  seq.  This  stat- 
ute was  afterwards  considerably  modi- 
fied by  acts  of  1849,  c.  375,  and  18G0,  c. 
90,  §  1. 

2  Bright,  ib.,  p.  648;  Laws  Penn. 
1848,  pp.  530-538.  It  should  be  said 
that  both  Maine  and  Michigan  had  en- 
acted laws  in  1844,  giving  enlarged 
powers  to  the  wife  to  hold  and  dis- 
pose of  separate  property,  thus  antici- 
pating some  of  tlie  statutory  changes 
both  in  New  York  and  Pennsylvania. 
Rev.  Stat.  Mich.  (1846)  p.  340;  Maine 
Statutes,  March  22,  1844. 

3  The  acts  now  in  force,  many  of 
them  perplexing,  which  need  not  here 
be  detailed,  will  be  found  summarized 
to  1882  in  Schoul.  Hus.  &  Wife,  Ap- 
pendix. More  or  less  liberality  is 
shown  in  different  States  in  the  legis- 
lative grant  of  separate  property,  but 
the  tendency  on  the  whole  is  to  place 
the  married  woman  on  the  footing 
of  a  feme  sole  in  respect  of  property 
and  kindred  rights  of  suit  and  con- 
tract. 

In  the  Southern  Law  Review,  vol.  6, 
p.  633,  will  be  found  an  instructive  arti- 

172 


cle  by  Professor  Henry  Hitchcock,  com- 
menting upon  marital  property  rights 
as  defined  by  American  statutes  in 
force  in  1880.  Detailing  the  statutory  . 
changes  which  have  occurred,  the 
author  calls  attention  to  the  fact  that 
in  Connecticut,  beginning  with  the  act 
of  1845,  there  were  eleven  successive 
statutes  passed  at  intervals  during  the 
twenty-one  years  ending  in  1866.  And 
see  Jackson  v.  Hubbard,  36  Conn.  10, 
on  this  point.  Afterward  another  stat- 
ute was  passed  in  this  Stale  in  1869, 
and  still  another  in  1872,  and  then,  at 
the  general  revision  of  the  statutes  in 
1875,  a  further  amendment  took  place. 
This  is  a  marked,  but  not  exceptional, 
instance  of  State  innovations  in  the 
law  of  Husband  and  Wife.  Between 
1850  and  1860  inclusive,  notes  the 
writer,  the  following  States  began  their 
married  women's  legislation,  some 
boldly,  others  timidly:  Indiana,  Mis- 
souri, New  Jersey,  Kansas  ;  Ohio,  and 
lUinois  followed  in  1861,  and  other 
States  successively  in  subsequent  years. 
In  1809  Congress  enacted,  for  the  bene- 
fit of  married  women  in  the  District  of 
Columbia,  one  of  the  most  radical  laws 
on  tiie  subject.  The  last  State  to  fall 
into  line  was  Virginia,  in  1877. 


CHAP.  IX.]     wife's  separate  PROPERTY.         §  114 

and  with  regard  to  woman  in  general,  the  constant  tendency 
has  been  to  enlarge  her  freedom  of  action,  and  open  to  her 
sex  pursuits  hitherto  closed  against  them. 

§  114.  Scope  of  Married  Women's  Acts ;  Constitutional  Points. 
—  The  main  principles  touching  the  acquisition  of  a  statutory 
separate  property  by  the  wife,  as  an  American  system  of 
positive  law,  we  shall  now  consider  as  fairly  as  circumstances 
permit.  And,  first,  it  may  be  remarked  in  general  that  these 
American  married  women's  acts  are  designed  for  woman's 
benefit,  and  that  they  do  not  limit,  but  rather  extend,  her 
right  to  beneficially  hold  separate  property.^  Where  she  is 
held  to  be  restricted  by  the  statute  at  all,  it  is  generally  with 
reference  to  the  right  of  disposition,  and  in  order  that  others 
may  not  subject  it  to  the  fulfilment  of  her  engagements.^ 
We  shall  presently  see,  moreover,  in  the  course  of  our  expo- 
sition, that  the  doctrines  of  an  equitable  separate  estate  in 
the  wife  are  generally  invoked  at  this  day  as  furnishing  a 
system  available  for  her  advantage,  wherever  (as  rarely  hap- 
pens) the  statutory  privileges,  in  any  particular  instance, 
prove  less  adequate  for  establishing  her  independent  property 
relations  ;  the  main  policy  of  the  married  women's  acts  being 
not  to  supersede  the  wife's  equitable  rights,  but  to  enlarge 
her  legal  status,  and  correct  the  old  anomaly  which  left  her  a 
person  in  equity  but  none  in  law. 

These  statutes  are  not  subject  to  mere  technical  construc- 
tion, but  the  will  of  the  legislature  should  be  fairly  inter- 
preted. The  legislative  will  is  not  presumed  to  be  so  exerted 
as  to  operate  retrospectively.  "  A  retrospective  statute, 
affecting  and  changing  vested  rights,"  observes  Chancellor 
Kent,  "  is  very  generally  considered  in  this  country  as 
founded  on  unconstitutional  principles,  and  consequently 
inoperative  and  void."  ^     The  whole   current  of  American 

1  Blevins  v.  Buck,  26  Ala.  292.  tional  and  State  constitutional  provi- 

2  See  Davis  v.  Foy,  7  S.  &  M.  64;  sions  —  as,  e.  g.,  that  no  one  shall  be 
Pond  r.  Carpenter,  12  Minn.  430;  Pip-  deprived  of  property  "without  due 
pen  V.  "Wesson,  74  N.  C.  437.  The  sub-  process  of  law,"  and  against  impairing 
ject  of  the  wife's  right  of  disposition  is  the  obligation  of  contracts  —  have  a 
discussed  in  a  later  chapter.  similar  bearing. 

3  1   Kent  Com.   455.     Various   na- 

173 


§  114  THE   DOMESTIC   RELATIONS.  [PAET  II. 

decisions  confirms  tliat  statement;  and  thus  is  it  with  our 
married  women's  acts,  for  they  necessarily  reduce  tlie  prop- 
erty rights  of  the  husband  as  prevalent  under  the  common 
law  of  coverture.  The  respective  rights  of  a  husband  and 
wife,  duly  married,  in  property  acquired  in  any  State,  be- 
fore fundamental  law  or  appropriate  legislation  therein  has 
changed  the  old  rule,  must  be  governed  by  the  rules  of 
the  common  law.^  Where  a  complete  legal  estate  in  the 
wife's  lands  has  already  vested  in  the  husband,  it  is  not 
taken  away  from  him.^  The  effect  of  a  previous  conveyance 
of  land  to  husband  and  wife  jointly  is  not  changed  in  respect 
of  survivorship.^  The  wife's  personal  property  already  in 
possession  or  reduced  to  possession  by  the  husband  is  his.^ 
And,  to  go  still  further,  in  her  chases  in  action,  or  unreduced 
personalty  which  he  is  already  at  liberty  to  reduce,  there  is  a 
valuable  existing  interest  capable  of  assignment  and  transfer, 
—  a  vested  right  in  the  husband  which  a  subsequent  statute 
or  State  constitutional  provision  cannot  deprive  him  of,  ac- 
cording to  the  better  opinion.^ 

The  interest  of  a  husband  in  remainder  in  property  already 
bequeathed  to  his  wife  on  the  contingency  of  surviving  a 
life  tenant  is  held  to  be  a  vested  right  in  such  a  sense  that  it 
cannot  be  taken  away  by  a  married  woman's  act  passed  before 
the  contingency  happens.^  And,  in  general,  an  interest  vested 
in  the  husband,  though  in  a  certain  sense  contingent,  which 

1  Carter  v.  Carter,  14  S.  &  M.  59;  202;  Ryder  v.  Hiilse,  24  N.  Y.  372; 
Scboul.  Hus.  &  Wife,  §  211,  and  cases  Stearns  v.  Weathers,  30  Ala.  712; 
cited;  Eldridge  v.  Preble,  34  Me.  148  ;  Kirkscy  r. Friend, 48  Ala.  276.  Such  is 
Qiiigley  v.  Graham,  18  Ohio  St.  42 ;  the  rule  with  reference  to  a  legacy  be- 
Farrell  v.  Patterson,  43  111.  52 ;  Coombs  queathed  to  a  wife,  and  taking  eflfect 
V.  Read,  10  Gray,  271.  So,  rights  ac-  before  the  passage  of  an  act  vesting  all 
quired  subsequently  under  a  foreign  .  such  property  in  the  married  woman : 
government.  Dubois  v.  Jackson,  49  Norris  ?;.  Beyea,  13  N  Y.  273,  288;  or 
111.  40.  her  distributive  share,  accruing  previ- 

2  Bouknight  v.  Epting,  11  S.  C.  71.  ously  in  an  estate:  lb.;  Kidd  v.  Mon- 
And  hence  the  husband's  interest  tague,  19  Ala.  619 ;  Sperry  v.  Haslam, 
therein  can  be  taken  and  sold  on  ex-  57  Ga.  412 ;  or  her  stock,  mortgages, 
ecution.     lb.  and    incorporeal    property    generally. 

3  Almond  v.  Bonnell.  76  111.  5-36.  See  Schoul.  IIus.  &  Wife,  §  211,  «., 
*  Buchanan  v.  Lee,  69  Ind.  117.  commenting  upon  Clark  v.  McCreary, 
5  See  Dunn  v.  Sargent,  101  Mass.     12  S.  &  IM.  347,  coDfra. 

339 ;   Westervelt  v.  Gregg,  12  N.  Y.  e  Dunn  v.  Sargent,  101  Mass.  336. 

174 


CELA.P.  IX.]  wife's    separate   PROPERTY.  §   115 

is  not  a  mere  expectancy  or  bare  possibility,  like  that  of  an 
heir  from  his  living  ancestor  who  may  yet  disinherit  him  by 
will,  but  is  an  interest  already  created  and  existing,  which  is 
descendible,  transmissible,  and  capable  of  transfer,  is  not  to  be 
taken  away  by  subsequent  legislation  in  the  wife's  favor.^  In 
like  manner  the  husband's  vested  life  estate  by  way  of  curtesy 
initiate  in  his  wife's  lands  cannot  be  taken  away  by  legisla- 
tive enactment,  anj'  more  than  the  wife's  inchoate  right  of 
dower  in  her  husband's  lands.^  Nor  can  any  interest  which 
a  husband,  before  the  passage  of  the  act,  has  in  his  wife's 
real  estate  be  thus  devested.^ 

In  some  States  all  these  constitutional  perplexities  are 
obviated  by  legislation  which  embraces  simply  such  property 
as  may  be  held  or  acquired  by  women  marrying  after  the 
passage  of  the  act."^  But  the  married  women's  acts  or  consti- 
tutional amendments  usually  operate  upon  parties  occupying 
already  the  conjugal  relation,  as  the  statute  language  shows, 
and  upon  those  who  as  a  fact  are  likely  each  to  have  married 
with  some  reference  to  the  pecuniary  expectations  of  the  other. 
To  protect  a  husband's  interests  to  any  such  extent,  however, 
on  any  constitutional  suggestion  on  his  behalf,  the  courts 
appear  uniformly  to  decline ;  for,  as  it  has  been  observed,  the 
marriage  contract  does  not  imply  that  the  husband  shall  have 
the  same  interest  in  the  future  acquisitions  of  the  wife  that 
the  law  gives  him  in  the  property  she  possesses  at  the  time 
of  the  marriage,  but  rather  that  she  shall  have  whatever  inter- 
est the  legislature,  before  she  is  invested  with  them,  may 
think  proper  to  prescribe.^     In  other  words,  while  the  hus- 


1  Gray,  J.,  in  Dunn  v.  Sargent,  101  Prall  v.  Smith,  81  N.  J.  L.  244  ;  Wytlie 
Mass.  33G;  Shaw,  C.  J.,  in  Gardner  v.  v.  Smith,  4  Sawyer,  17. 

Hooper,  3  Gray,  398.  Tlie   increase   of    domestic   animals 

2  Rose  I'.  Sanderson,  38  111.  247 ;  purchased  by  the  husband  before  the 
Dayton  y.  Dusenbury,  25  N.J.  Eq.  110.  passage  of  the  married  woman's  act 
Rents  of  the  wife's  land,  too,  accruing  Ibelongs  to  him,  and  not  to  his  wife, 
before  her  death  and  prior  to  the  new  Hazelbaker  r.  Goodfellow,  64  111.  238. 
constitutional  provision  as  to  married  *  See  Maclay  v.  Love,  25  Cal.  367. 
women's  rights,  go  with  the  curtesy,  Cf.  Eugh  v.  Ottenheimer,  G  Oreg.  231. 
and  not  to  the  wife's  heirs.  Matthews  5  Sleight  v.  Read,  18  Barb,  159; 
V.  Copeland,  79  N.  C.  493.  Southard  v.  Plummer,  36  Me.  64. 

s  Burson's  Appeal,  22  Penn.  St.  164 ; 

175 


§  115  THE   DOMESTIC    RELATIONS.  [PART   II. 

band's  vested  rights  arising  under  a  marriage  cannot  be 
constitutionally  disturbed  by  an  alteration  of  the  law,  his 
mere  expectancy,  or  the  possibility  of  some  future  acquisition 
by  right  of  marriage,  is  subject  to  any  change  which  the  legis- 
lature may  choose  to  make  prior  to  the  vesting  of  a  right  in 
the  husband.^  And  whatever  a  married  woman  may  have 
acquired  subsequently  to  the  passage  of  an  appropriate  act 
by  gift,  devise,  bequest,  and  so  on,  becomes  her  statutory 
separate  estate,  and  all  parties  concerned  must  govern  them- 
selves accordingly. 2 

A  corresponding  rule  of  constitutional  limitations  applies 
to  the  rights  and  liabilities  of  the  wife  under  these  acts,  as  to 
her  title  by  gift  or  purchase,  and  as  to  her  dominion  over  her 
property  generally,'^  of  which  we  are  to  speak  hereafter. 

§  115.  Married  Women's  Acts  as  to  Antenuptial  Property 
and  Acquisitions  from  Third  Persons.  —  Our  married  women's 
codes  fairly  correspond  in  permitting  the  wife  (subject  to  con- 
stitutional limitations)  to  hold,  in  her  sole  and  separate  right, 
all  the  property,  real  or  personal,  which  she  had  at  the  time 
of  marriage,  or  has  acquired  thereafter  from  any  person 
other  than  her  husband,  by  gift,  grant,  devise,  or  bequest. 
Real  estate  thus  held  or  acquired  is  regarded,  not  as  land  of 
which  the  husband  enjoys  the  beneficial  use,  but  as  her  sepa- 
rate land.  Leasehold  property  may  be  thus  held  and  enjoyed 
by  the  wife.^  Her  personal  property,  whether  in  possession 
or  lying  in  action,  is  her  own,  provided  the  statute  descrip- 
tion be  fulfilled.  A  married  woman,  transferring  stock  after 
marriage  from  her  maiden  to  her  married  name,  may  retain  it 
as  her  separate  property.'^  Notes,  bonds,  or  other  evidences 
of  debt,  and  incorporeal  property,*^  pass  to   her  as   well    as 

1  Cooley  Const.  Limitations,  360-  Lanahan,  58  Me.  478.  See,  further, 
362 ;   Holliday   v.  McMillan,  79  N.  C.     Schoul.  Hus.  &  Wife,  §  213. 

315 ;  Gray,  J.,  in  Dunn  r.  Sargent,  101  *  Vandevoort   v.    Gould,   36   N.   Y. 

Mass.  336  ;  Hill  v.  Chambers,  30  Mich.  639 ;  Prevot  v.  Lawrence,  51  N.  Y.  219. 

422.  As  to  land  damages  and  equity  to  land, 

2  Cherokee  Lodge  v.  White,  G3  see  State  v.  Hulick,  33  N.  J.  307; 
Ga.  742;  Nevius  v.  Gourley,  95  111.  Sharpless  v.  West  Chester,  1  Grant, 
206.  257;  Prout  i'.  Hoge,  57  Ala.  28. 

3  Bryant  v.   Merrill,   55  Me.   515;         5  Mnson  r.  Fuller,  36  Conn.  160. 
Clark  V.  Clark,  20  Ohio  St.  128;  Lee  v.         6  Selden  v.  Bank,  G9  Penn.  St.  424. 

176 


CHAP.  IX.]  wife's   separate  PROPERTY.  §  IH 

corporeal  property ;  animate  as  well  as  inanimate  property  ;  ^ 
money,  which  of  course  is  personal  property.^ 

§116.  Change  of  Investment;  Increase  and  Profits.  —  Prop- 
erty acquired  by  exchange  for  the  wife's  statutory  property 
is  presumably  her  separate  property  likewise,  as  where  one 
horse  is  exchanged  for  another.^  And  since  the  income  of  her 
separate  fund  is  hers,  property  purchased  with  her  savings 
from  interest  arising  out  of  her  separate  funds  belongs  to  her 
as  her  separate  property.*  Upon  a  sale  and  exchange  of  the 
wife's  separate,  as  contrasted  with  her  general,,  lands,  the  pro- 
ceeds belong  to  the  wife.'^  And  where  her  realty,  as  in  parti- 
tion proceedings,  is  converted  into  money,  the  proceeds 
stand  in  lieu  of  the  real  estate  for  her  benefit.*^  Equity 
comes  in  aid  of  these  principles,  where  statutory  remedies  are 
inadequate,  and  indeed  of  numerous  kindred  rules  under  the 
married  women's  acts. 

The  natural  increase  and  profits  of  the  wife's  statutory 
separate  property,  including  the  progeny  of  her  separate 
domestic  animals,  and  the  rents  of  her  separate  lands  or  the 
crops,  are  usually  to  be  construed  hers  and  at  her  disposal 
during  marriage,  as  well  as  the  property  which  produced  the 
increase  and  profits.^  If  it  were  rightly  held  otherwise,  this 
would  be  on  some  construction  that  the  wife  had,  by  her 
acts  and  conduct,  acquiesced  in  her  husband's  assumption  of 
the  ownership.^  In  short,  all  the  product  and  increase  of  the 
original  property  will  become  the  wife's  as  long  as  she  can 
follow  and  identify  it,^  though  expenditure  of  income  for 
authorized  family  purposes  may  well  be  presumed. ^'^ 

§  117.  Methods  of  Transfer  from  Third  Parties  under  these 
Acts.  —  Where  the  property  is  such  as    can  pass  without  a 

1  Gans  V.  Williams,  62  Ala.  41.  Perry,  70  Ind.  501.     But  as  to  products 

2  Mitchell  V.  Mitchell,  85  Miss.  114.  of  the  land  occupied  by  the  family,  cf. 

3  Pike  V.  Baker,  53  111.  163.  Moreland  v.  Myall,  14  Bush,  474  ;  Hill 
*  Merritt  v.  Lyon,  3  Barb.  110.  v.  Chambers,  30  Mich.  422. 

5  Brevard  v.  Jones,  50  Ala.  221.  ^  j^^^^  g^g  peculiar  statute  construed 

6  Nissley  v.  Heisey,  78  Penn.  St.  in  Chambers  v.  Richardson,  57  Ala  85. 
418;  Rice  17.  Hoffman,  35  Md.  344.  9  Holcomb    r.    Meadville    Savings 

7  Williams   v.   McGrade,  13   Minn.  Bank,  92  Penn.  St.  338. 

46;   Hanson  v.   Millett,   55  Me.   184;        lo  See    Chambers  v.  Ricliardson,  57 
Gans  V.  Williams,  62  Ala.  41 ;  Hutch-    Ala.  85. 
ins   V.  Colby,  43  N.   H.  159;  Stout  v. 

12  177 


§  118  THE   DOMESTIC   RELATIONS.  [PART   II. 

written  transfer  or  conveyance,  a  gift  or  sale  to  the  wife,  of 
statutory  separate  property,  may  be  by  parol ;  ^  although,  of 
course,  all  proof  must  consist  with  the  idea  that  delivery  is 
for  her  sole  and  separate  use,  and  not  so  as  to  admit  the 
rights  of  her  husband.^  Where  a  conveyance  or  other  writ- 
ten instrument  is  needful,  the  expression  must  likewise  con- 
form to  the  legislative  intent ;  and  even  where  the  language 
of  the  statute  is  broad  enough  to  dispense  with  such  phrases 
as  "  sole  and  separate  use,"  the  wife's  only  safety  consists  in 
having  her  name  used  as  that  of  grantee  or  transferee,  instead 
of  the  husband's.^  Wliere  it  comes  to  an  expression  of  sepa- 
rate use,  under  some  instrument  made  on  the  wife's  behalf, 
an  equitable  separate  use,  rather  than  a  statutory  separate 
use,  may  be  said  to  have  been  created ;  though  authorities 
style  it  under  some  local  acts  as  a  statutory  separate 
estate.* 

§  118.  Acquisitions  from  Husband  not  so  much  Favored. — 
But  as  concerns  acquisitions  of  the  wife  from  her  husband, 
the  married  women's  acts  by  no  means  concur  in  making  this 
her  statutory  separate  estate,  as  they  do  where  the  acquisi- 
tion is  derived  from  some  third  party.  Some  local  legisla- 
tures, to  be  sure,  have  gone  as  far  as  this,  but  by  no  means 
the  greater  number.^  Hence  we  may  defer  the  discussion  of 
earnings,  pin-money,  postnuptial  settlements,  and  gifts  from 
husband  to  wife  until  later  chapters  of  this  treatise  are 
reached,  when  the  equitable  doctrine  will  be  considered  in 
the  same  connection.  A  title  to  separate  statutory  property 
cannot  be  vested  in  the  wife  on  her  husband's  credit,  where 


1  Tinsley  v.  Roll,  2  Met.  (K)'.)  509.  ■*  A  conveyance  of  lands  in  Alaba- 

2  Walton     V.    Broaddus,    6    Bush,     ma  to  a  married  woman,  "  to  have  and 
328.  to  hold  to  the  sole  and  proper  use,  ben- 


3  Pepper  v.  Lee,  53  Ala.  33 
Slaughter  v.  Glenn,  98  U.  S.  Supr.  242 
Robinson     v.    O'Neal,    56    Ala.    541 


efit,  and  behoof  of  her,  her  heirs  and  as- 
signs for  ever,"  vests  in  her,  under  the 
laws  of  tliat  State,  a  statutory  separate 


Campbell  v.  Galbreath,  12  Bush,  459.  estate.    Lippincott  v.  Mitchell,  94  U.  S. 

Under  the  more  sweeping  local  statutes  Supr.  767.     And  see  Swain  y.  Duane, 

a  conveyance  to  a  married  woman  need  48   Cal.  358;  Evans  f .  Nealis,  69  Ind. 

not  state  that  she  is  to  hold  it  to  her  148. 

separate  use.     Sims  v.  Rickets,  35  Ind.  5  gge   Towle  v.   Towle,   114  ilass. 

181.  1G7 ;  Jenkins  v.  Flinn,  37  Ind.  .349. 

178 


CHAP.  IX.]  wife's    separate    PROPERTY.  §  118 

the  statute  only  recognizes  her  right  to  acquire  from  third 
persons,  any  more  than  it  coukl  by  his  money.^  And  such  is 
the  temptation  to  making  colorable  transfers  to  one's  wife  in 
fraud  of  creditors,  that  in  controversies  over  title,  where  the 
legislation  discourages  acquisitions  from  the  husband,  the 
wife,  as  against  the  husband  and  his  creditors  and  representa- 
tives, has  been  held  quite  strictly  to  her  proofs  of  acquisition 
from  a  person  other  than  her  husband,^  unless,  at  all  events, 
there  are  writings  which  run  so  as  suitably  to  give  her  the 
the  legal  title  instead.^ 

Where  a  husband  purchases  land  or  personalty  with  his 
own  money,  and  conveys  or  transfers  it  to  his  wife,  through 
a  trustee  or  otherwise,  the  question  becomes  ordinarily  one  of 
postnuptial  settlement  or  gift,  with  equitable  rules  such  as 
we  shall  consider  hereafter;  though  sometimes  the  married 
women's  act  is  broad  enough  in  scope  to  confer  the  right  of 
separate  property  acquisition,  as  such,  from  a  husband,  as 
well  as  from  third  persons.  If,  on  either  theory,  the  title 
vests  in  the  wife,  as  of  her  separate  right,  the  proceeds  there- 
of, or  the  specific  re-investment,  is  the  wife's  also.  Where 
the  husband  appropriates  such  proceeds  or  takes  other  prop- 
erty in  his  own  name,  equity  and  modern  statutes  between 
them  may  preserve  the  wife's  rights  ;  she  may,  in  the  usual 
manner,  follow  her  title  into  the  new  property,  or  else  regard 
her  trustee  as  remiss  in  duty  and  indebted  to  her. 

Again,  the  wife  is  permitted  to  bestow  her  statutory  sepa- 
rate property  upon  her  husband,  or  waive  her  statutory 
rights  to  a  considerable  extent.  Thus,  it  is  held  that  money 
used  by  the  husband  with  the  wife's  knowledge  and  consent, 
in  payment  of  ordinary  household  expenses,  and  without  any 
agreement  for  repayment  to  her  on  his  part,  cannot  be  recov- 
ered from  his  estate  afterwards.*  The  husband  may  reduce 
to  possession  his  wife's  outstanding  personals  in  action ;  but 
out   of    regard   to   her   statutory   rights,    the    doctrine   now 

1  Hopkins  v.  Carey,  23  Miss.  54;  '  Lyon  v.  Green  Bay  R.,  42  "Wis. 
Worth  ;;.  York,  13  Ired.  206.  548. 

2  See  Reeves  v.  Webster,  71  III.  807 ;  *  Cartwright  v.  Cartwright,  .53  Iowa, 
Johnson  v.  Johnson,  72  III.  489.  57. 

179 


§  119  THE   DOMESTIC   RELATIONS.  [PART   II. 

becomes  of  somewhat  novel  application,  and  evidence  of  the 
wife's  consent  is  properly  required  in  many  States  before  the 
husband's  act  of  appropriation  shall  be  considered  complete. 
For  \yhile  she  may  bestow  her  goods  and  chattels  upon  him, 
under  suitable  circumstances,  he  can  no  longer  go  to  work, 
as  he  could  at  the  common  law,  and  make  his  title  complete 
without  reference  to  her  wishes.^  Nor  has  the  debtor  or 
custodian  of  the  incorporeal  property,  or  the  executor  or  ad- 
ministrator who  settles  the  estate  in  which  the  married 
woman  may  have  a  legacy  or  distributive  share  accruing  to 
her,  the  right  to  recognize  the  husband  as  entitled  to  her 
exclusion,  or  to  pay  over  to  him  on  his  sole  and  unauthorized 
receipt.^ 

§  119.  Husband's  Control ;  Mixing  "Wife's  Property  or  Keep- 
ing it  Distinct.  —  The  greatest  source  of  perplexity,  in  truth, 
in  these  married  women's  acts,  arises  out  of  the  effort  at  elimi- 
nation of  the  husband's  control  in  the  wife's  statutory  prop- 
erty ;  for  here  the  safeguards  usual  in  equitable  trusts  are 
wanting.  Nor  are  States  agreed  in  the  course  to  pursue, 
since  the  policy  in  one  is  to  emancipate  the  wife  from  prop- 
erty restraints,  while  another  grudges  the  change  as  tending 
to  strip  the  husband  of  his  matrimonial  rights.  A  married 
woman,  in  order  to  preserve  her  separate  property,  should 
keep  it  distinct  from  that  of  her  husband  ;  and  especially  does 
the  rule  hold  true  in  States  where  presumptions  are  against 
her  exclusive  right.  Thus  it  is  held  that  if  a  married  woman 
willingly  allows  what  she  might  have  retained  as  her  sepa- 
rate property  to  be  so  mixed  into  a  common  mass  with  that 
of  the  husband  as  to  be  undistinguishable,  or  acquiesces  in 
leaving  it  so,  it  must,  as  to  her  husband's  creditors,  be  treated 
as   relinquished   to    him .3     So,  too,  land   or   other  property 

1  Vreeland  v.   Vreeland,   1    C.    E.  and  reducing  to  possession  his   wife's 
Green,    512  ;    King   v.    Gottsclialk,    21  chosex  in  action.     Clark  v.  Bank  of  Mis- 
Iowa,  512;   Haswell  v.  Hill,  47  N.  H.  souri,  47  Mo.  17. 
407.  3  Glover  v.  Alcott,   11  Mich.  470; 

-  Alder,  if   the    husband's    receipt  Gross   v.   Reddy,    45    Penn.    St.   406; 
was  authorized  by  the   wife.     Hoben-  Kelly  v.  Drew,  12  Allen.  107 ;  Cham- 
sack   V.   Hallman,   17    Penn.    St.    154.  bers  y.  Richardson,  57  Ala.  85  ;  Humes 
Some  of  the  local  statutes  are  held  not  v.  Scruggs,  94  U.  S.  Supr.  22. 
to  restrain  die  husband  from  collecting 

180 


CHAP.  IX.]  wife's    separate   PROPERTY.  §  119 

bought  by  the  husband  with  his  wife's  money,  but  in  his  own 
name,  and  without  any  agreement  that  the  purchase  shall  be 
to  her  separate  use,  or  the  title  taken  in  her  name,  will  not, 
as  a  rule,  be  treated  as  her  separate  property,^  If  certain 
property  be  purchased  in  part  from  her  own  funds,  and  in 
part  from  her  husband's,  whatever  the  form  of  the  invest- 
ment, her  title  extends  only  to  the  amount  of  her  in  vest- 
men  t.^ 

On  the  other  hand,  where  the  husband  has  kept  his  wife's 
funds  distinct  from  his,  though  changing  investments  from 
time  to  time,  and  preserved  the  ear-marks,  so  to  speak,  her 
right  to  claim  the  property  from  his  estate,  upon  surviving 
him,  has  been  strongly  asserted.^ 

So  discordant  is  our  married  women's  legislation,  however, 
that  in  New  York,  where  presumptions  lean  strongly  to  the 
wife's  side,  it  is  held  that  if  household  furniture  belonging  to  a 
wife,  and  acquired  from  her  father,  is,  with  her  consent,  taken 
to  the  common  dwelling,  mingled  with  the  husband's  furni- 
ture, and  used  therewith  for  the  common  household  purposes, 
it  does  not  thereby  become  her  husband's  property,  but  the 
title  remains  in  her.^  This  doctrine,  however,  is  applied  as 
between  the  wife  or  her  assignee,  and  the  husband  himself;^ 
and  as  to  bona  fide  third  parties  for  value  without  notice,  the 
assertion  of  a  wife's  title  as  against  those  who  have  given 
credit  to  a  husband  in  possession  requires  the  nicest  discrim- 
ination on  the  part  of  the  court.  Property  bought  by  a  hus- 
band with  money  belonging  to  his  wife  will  in  general  be 
presumed  to  be  his  own  until  the  contrary  is  shown ;  ^  and 
even  property  bought  by  the  husband  with  money  from  the 
wife,  which  is  placed  in  his  hands  for  such  investment  in  his 

1  Kid  well  V.  Kirkpatrick,  70  Mo.  214  »  Fowler  v.  Rice,  31  Ind.  358;  Rich- 

2  Hopkins  v.  Carey,  23  Miss.  54  ;  ardson  v.  Merrill,  32  Vt.  27  ;  McCowau 
Worth  V.  York,  13  Ired.  206;  Haines  v.  Donaldson,  128  Mass.  169;  Sclioul. 
V.  Haines,  54  111.  74.  Under  Maine  Hus.  &  Wife,  §  219,  and  numerous 
statutes,  property  conveyed  to  a  mar-  cases  cited. 

ried  woman,  but  wholly  or  partly  paid         *  Fitch  v.  Rathbun,  61  N.  Y.  579. 

for  by  her  husband,  may  be  reached  5  lb. 

by  the  husband's  creditors  to  the  ex-         ^  Moye  v.  Waters,  51  Ga.  13.    But 

tent  of  his  interest.     Call  v.  Perkins,  65  see  next  c.  as  to  his  agency. 

Me.  439. 

181 


§  120  THE  DOMESTIC   RELATIONS.  [PAKT   II. 

name  and  for  his  benefit,  is  liable  to  seizure  for  his  debts, 
notwithstanding  she  borrowed  the  money. ^  A  wife  may 
have  an  equitable  right  to  pursue  her  funds  invested  by  her 
husband,  while,  until  this  right  is  asserted,  the  husband  retains 
a  legal  title  of  which  a  bona  fide  transferee  for  value  may  per- 
haps avail  himself  by  way  of  a  countervailing  equity .^ 

§  120.  Husband  as  "Wife's  Trustee  in  this  Connection.  —  The 
husband,  while  the  marriage  relation  lasts,  may  hence  become 
bound  as  trustee  of  his  wife's  statutory  separate  estate,  not 
only  by  express  appointment,  but  through  implication,  as 
under  the  equity  rule.^  In  certain  States,  such  as  Connec- 
ticut and  Alabama,  the  husband  is  specially  designated  by 
statute  as  his  wife's  trustee,*  —  a  peculiarity  of  legislation 
which  is  attended  with  peculiar  consequences  as  to  the  legal 
title  rff  such  property.  And  since  the  opportunities  afforded 
him  for  mixing  up  her  property  with  his  are  very  great,  in 
the  present  raw  age  of  our  married  women's  legislation,  we 
often  find  her,  upon  surviving  him,  a  general  creditor  against 
his  estate,  or  the  claimant  of  a  trust  fund  which  cannot 
easily  be  identified.^  Unlike  the  wife's  separate  estate  in 
equity,  the  separate  property  of  a  married  woman  under 
American  statutes  seems  sometimes  to  retain  its  qualities 
after  her  death,  so  that  her  administrator  often  claims  it 
against  her  surviving  husband.^  It  would  appear  that  in 
general  the  agency  of  the  husband  in  selling,  exchanging, 
or  managing  his  wife's  separate  statutory  property  ma}^  be 
previously  conferred  or  ratified  afterwards  by  the  wife.'^ 

i  Nelson  v.  Smith,  64  III.  .394.  gard  to  it.     Williams  v.  King,  43  Conn. 

2  See  Holly  v.  Flournoy,  54  Ala.  99.  569. 

3  "Walter  v.  Walter,  48  Mo.  140 ;  The  husband  may  sue,  "  as  trustee 
Hall  V.  Creswell,  46  Ala.  460;  Wood  v.  of"  his  wife,  to  recover  rents,  income. 
Wood,  83  N.  Y.  575;  Patten  v.  Patten,  and  profits  of  his  wife's  statutory  sep- 
75  111.  446.  arate  estate.     Bentley  v.  Simmons,  51 

■•  Sherwood  v.  Sherwood,  32  Conn.  Ala.  165. 

1 ;  Marsh  v.  Marsh,  43  Ala.  677.     The  5  Martin    v.    Curd,    1    Bush,   327 ; 

personal  property  of  a  married  woman,  Hause   v.   Gilger,   52    Penn.    St.    412; 

which  is  by  the  statute  vested  in  the  Fowler  v.  Rice,  31  Ind.  258. 

husband  as  her  trustee,  is  not  in  legal  ^  Leland   v.    Whitaker,    23    Mich, 

strictness  her  sole  and  separate  estate,  324. 

unless  the  husband  transfers  it  to  the  ''  Lichtenberger  v.  Graham,  50  Ind. 

wife  or  relinquishes  his  right  with  re-  288.     See  next  c. 

182 


CHAP.  XI.]         wife's  separate  pkopeety.  §  120  a 

§  120  rt.  Presumptions  as  to  Separate  Property  under  these 
Acts. —  We  must  here  bear  in  mind  tliat  the  married  women's 
acts  have  reference,  not  to  the  wife's  proj)erty  in  the  mass, 
but  to  property  suitably  acquired  by  her  in  certain  instances 
by  way  of  exception  to  the  old  rule  of  coverture.  Broad, 
therefore,  as  they  may  often  appear,  these  statutes  are  con- 
siderably restrained  by  judicial  construction  and  the  applica- 
tion of  presumptions.  In  Massachusetts,  Maine,  California, 
Wisconsin,  Illinois,  and  other  States,  the  presumption  is  still, 
in  absence  of  suitable  words  or  circumstances  manifesting  an 
intent  on  the  part  of  those  interested  to  claim  the  benefits  of 
the  statute,  that  a  married  woman's  property  belongs  to  her 
husband  as  at  the  common  law  ;  and  his  possession  of  the  prop- 
erty, undisputed  and  unexplained,  or  even  a  visible  possession 
thereof  in  connection  with  his  wife,  gives  him  the  marital 
dominion.!  In  Pennsylvania  the  courts  were  at  first  disposed 
to  rule  otherwise,  but  they,  too,  have  finally  settled  upon  the 
same  presumption.^  On  the  other  hand,  the  New  York 
courts  approve  the  new  system  to  its  widest  extent,  thus  far ; 
and  it  would  appear  that  married  women  in  that  State  are 
well-nigh  emancipated  altogether  from  marital  restraints,  so 
far  as  concerns  their  property,  while  the  husband's  own  rights 
therein  are  exceedingly  precarious.^  To  ascertain  as  a  fact 
whether  the  ownership  be  in  wife  or  husband,  evidence  of 
how  the  matter  was  understood  and  treated  between  the 
spouses  may  be  quite  essential ;  ■*  for  a  sort  of  joint  possession 

1  Eldridge  v.  Preble,  34  Me.  148;  33  Penn.  St.  525;  Gault  v.  Saffin,  44 
Smith  V.  Heniy,  35  Miss.  369;  Alver-  Penn.  St.  307;  with  Goodyear  v.  Euni- 
son  V.  Jones,  10  Cal.  9 ;  Farrell  v.  Pat-  baugh,  13  Penn.  St.  480.  And  see 
terson,  43  III.  52;  Reeves  v.  Webster,  Curry  v.  Bott,  53  Penn.  St.  400.  Un- 
71  111.  307  ;  Stanton  v.  Kirsch,  G  Wis.  der  tbe  law  of  Tennessee,  direct  gifts  to 
338 ;  Smith  v.  Hewett,  13  Iowa,  94.  the  wife  enure  to  the  husband,  unless 
Co)i<)-fl,  Johnson  r.  Runyan,  21  Ind.  115;  the  separate  estate  intention  is  clearly 
Stewart  v.  Ball,  33  Mo.  154.  Wliile  a  expressed.  Ewing  v.  Helm,  2  Tenn. 
husband  and  wife  both  live  on  her  land  Ch.  368. 

held  as  general  estate,  the  possession         ■*  Peters  v.  Fowler,  41  Barb.  467 ; 

of  the  products   is  presumptively  his.  Knapp  v.  Smith,  27  N.  Y.  277. 
Moreland  v.  Myall,  14  Bush,  474.     But  *  Hill   v.   Chambers,  30  Mich.  422. 

cf.  Hill  V.  Chambers,  30  Mich.  422.  In  this  State  the  obvious  inclination  is 

2  Cf.   Camber  v.  Gamber,  18  Penn.  to  determine,  not  by  presumptions  or 
St.   363;   Winter  v.  Walter,  37  Penn.  inferences,  but  upon  the  facts,     lb. 
St.  157 ;  Bear's  Administrator  v.  Bear, 

183 


122 


THE   DOMESTIC   DELATIONS. 


[part  II. 


Oil  their  part  is  often  the  practical  situation  of  tlie  case.^ 
And  thus  does  one  State  regard  the  wife's  right  to  her  own 
acquisitions  as  the  rule,  and  another  as  the  exception. 

§121.  Schedule  or  Inventory  of  Wife's  Property.  —  The 
requirement  in  a  few  States  is  that  the  wife's  separate  prop- 
erty shall  be  scheduled  or  inventoried  in  order  to  receive 
legal  protection  for  her  separate  benefit.^ 

§  122.  Statutory  and  Equitable  Separate  Property.  —  In  New 
York  and  Mississippi  it  is  held  that  the  married  women's  act 
does  not  oust  the  original  jurisdiction  of  courts  of  equity  in 
cases  affecting  the  separate  estates  of  married  women. ^ 


^  Ganiber  v.  Gamber,  18  Penn.  St. 
363.  And  see  Kenney  v.  Good,  21  Penn. 
St.  349.  As  the  rule  is  usually  ex- 
pounded, presumptions  bear  heavily 
against  the  wife  in  contests  of  title,  but 
more  especially  where  the  rights  of  a 
husband's  creditors  are  affected  by  the 
decision.  "  Between  strangers,"  it  is 
observed  in  a  Pennsylvania  case, "  open, 
visible,  notorious,  and  exclusive  posses- 
sion is  the  test  of  title  in  all  cases 
wliere  the  rights  of  creditors  are  in- 
volved. But  this  is  not  possible  with 
reference  to  the  personal  goods  of  a 
married  woman.  She  cannot  have  or 
use  her  property  exclusively,  unless 
she  lives  apart  from  her  husband.  It 
was  not  the  intention  of  the  legislature 
to  compel  a  separation  in  order  to  save 
the  wife's  rights ;  but  if  the  rule  of 
exclusive  possession  were  adopted,  the 
statute  would  be  inoperative  as  long 
as  they  live  together.  But  this  shows 
how  necessary  it  is  to  demand  the 
clearest  proof  of  the  wife's  original 
right."     Gamber  i'.  Gamber,  supra. 

2  Price  V.  Sanchez,  8  Fla.  136 ; 
Humphries  v.  Harrison,  30  Ark.  79 ; 
Selover  v.  Conmiercial  Co.,  7  Cal.  2GG ; 
Schoul.  Hus.  &  Wife,  §  222.  This  reg- 
istry law,  after  having  called  for  con- 
siderable construction  in  the  courts, 
appears  to  have  finally  been  repealed 
in  Iowa.  Schmidt  v.  Iloltz,  44  Iowa, 
448. 

3  Mitchell  V.  Otey,  23  Miss.  236 ; 
Colvin  V.  Currier,  22  Barb.  371  (Strong, 

184 


J.,  dissenting).  See  the  recent  case  of 
Wood  V.  Wood,  83  N.  Y.  575,  where 
Folger,  C.  J.,  observes  that  the  married 
women's  acts,  by  their  own  operation, 
changed  the  wile's  capacity  to  hold  a 
separate  estate  as  a  matter  of  equity 
into  a  legal  estate.  So,  too,  in  a  Mich- 
igan case,  it  is  observed  that,  as  re- 
gards the  wife's  individual  property, 
the  married  women's  legislation  has 
done  little  more  than  to  give  legal 
rights  and  remedies  to  the  wile,  where 
before,  by  settlement  or  contract,  she 
might  have  established  corresponding 
equitable  rights  and  remedies.  Snyder 
V.  People,  26  Mich.  106.  And  see  Claw- 
son  V.  Clawson,  25  Ind.  229.  That 
this  legislation,  properly  so  called,  does 
not  profess  to  operate  upon  the  fam- 
ily relation,  or  take  from  the  husband 
his  marital  rights,  except  as  pertain- 
ing to  property,  is  frequently  insisted 
upon.  Snyder  v.  People,  26  Mich. 
105. 

"  The  estate  thus  assured  to  the 
wife,"  as  a  Pennsylvania  case  well 
observes,  "is  only  analogous  to  the 
equitable  separate  estate,  and  is  seri- 
ously modified  by  the  fact  that  she  has 
no  trustee  separate  from  her  husband  ; 
and  that  he,  therefore,  as  the  legal 
guardian  of  her  rights,  necessarily  be- 
comes, in  a  large  sense,  her  trustee, 
but  without  all  of  the  law's  suspicion 
of  his  dealing  with  the  trust  property, 
for  the  community  of  interests  and 
sympathies   of  husband  and  wife  for- 


CHAP.  IX.]  wife's    separate   PROPERTY.  §  124 

§  123.  American  Equity  Doctrine;  Trustee  for  Separate  Prop- 
erty. —  Doubtless  the  married  women's  acts  have  given  a 
fresh  impulse  to  the  equitable  protection  of  married  women's 
property,  which,  as  we  have  stated,  had  been  quite  sparingly 
exercised  in  the  United  States  prior  to  the  first  legislative 
enactments  on  this  subject.  Where  the  separate  use  has 
been  recognized  and  enforced  at  all,  the  strict  American  rule 
was  always  borrowed  from  that  of  England.  And  the  latest 
cases  show  an  increasing  liberality  to  the  wife  in  our  courts 
of  equity.  Thus  it  has  been  frequently  said  that  the  wife's 
sejDarate  estate  requires  no  trustee  to  sustain  it.^  For  when 
no  other  trustee  is  interposed,  the  courts  of  chancery  are 
prepared  to  treat  the  husband  as  such  by  virtue  of  his  posses- 
sion and  control  of  the  fund.^  And  one  may,  by  his  acts, 
make  himself  a  trustee  sub  modo  to  support  the  wife's  sepa- 
rate use.^  Even  a  purchaser,  still  more  a  volunteer,  taking 
possession  of  the  trust  property,  with  a  notice  of  the  trust, 
will  be  made  a  trustee  in  chancery.* 

§  124.  Equity  Doctrine  ;  Ho-w  Separate  Use  Created.  —  So, 
too,  an  intention  clearly  manifested  to  create  a  separate  estate 
has  always  been  deemed  necessary  in  our  courts,  in  order  to 
exclude  the  husband's  marital  rights.  The  mere  intervention 
of  a  trustee  is  insufficient.^  The  language  employed,  if 
language  be  necessarily  relied  on,  must  be  suitable.^  And 
provisions  for  the  sole  and  separate  use,  support,  and  main- 
bid  tliis."  Lowrie,  C.  J.,  in  Walker  Evans  v.  Knorr,  4  Rawle,  66;  Taylor 
V.  Rtamy,  30  Penn.  St.  410,  414.  v.  Stone,  13  S.  &  M.  053;  Schoul.  Hus. 

i  McKeniian   v.  Phillips,  6   WKart.     &  Wife,  §  225. 
571;  Thompson  y.  McKusick, 3  Humph.  6  Thus,    in    North    Carolina,    the 

631 ;  Fellows  v.  Tann,  9  Ala.  099 ;  words,  "  for  her  use,"  have  been  held 
Trenton  Banking  Co.  v.  Woodruff,  1  sufBcient  to  exclude  the  husband's  do- 
Green  Ch.  117.  minion.    Steel  v.  Steel,  1  Ired.  Eq.  452. 

2  Boykin  v.  Ciples,  2  Hill  Ch.  200;  So,  too,  the  words,  "  for  the  entire  use, 
Hamilton  w.  Bishop,  8  Yerg.  33;  Wal-  benefit,  profit,  and  advantage."  Heath- 
lingsford  v.  Allen,  10  Pet.  583  ;  Porter  man  v.  Hall,  3  Ired.  Eq.  414.  But  in 
V.  Bank  of  Rutland,  19  Vt.  410  ;  Schoul.  South  Carolina,  the  words,  for  "  the 
Hus.  &  Wife,  §  224,  and  cases  cited ;  use  of  his  wife,"  are  held  insufficient. 
Pepper  v.  Lee,  53  Ala.  33;  Richardson  Tennant  v.  Stoney,  1  Ricii.  Eq.  222  ; 
V.  Stodder,  100  Mass.  528.  M'Donald  v.  Crockett,  2  McC.  Ch.  130. 

3  Sledge  V.  Clopton,  6  Ala.  589.  In  Kentucky,  the  words,  "for  her  own 
*  Jackson  v.  McAliley,  Speers  Eq.     proper  use  and  benefit,"  are  held  suffi- 

303  ;  Fry  v.  Fry,  7  Paige,  Ch.  461.  cient.     Griffith  v.  Griffith,  5  B.  Monr. 

5  Hunt  V.  Booth,  1  Freem.  Ch.  215 ;     113.     Such,   too,  seems  to  have  been 

185 


124 


THE    DOMESTIC   RELATIONS. 


[PAET  II. 


tenance  of  a  wife  and  cliilclreii  are  frequently  sustained, 
though  the  trust  does  not  vest  their  respective  interests  con- 
secutively.^ As  in  England,  our  courts  permit  an  estate  to  be 
so  settled  on  an  unmarried  female  as  to  exclude  the  marital 
rights  of  any  future  hu^baud.^ 


the  rule  in  Alabama.  Warren  v.  Hal- 
sey,  1  S.  &  M.  Ch.  Gi?.  The  words 
"  to  the  use  and  benefit "  are  held 
sufficient  in  Tennessee.  Hamilton  v. 
Bishop,  8  Yerg.  83.  So  in  Alabama, 
words  importing  enjoyment  "  without 
let,  hindrance,  or  molestation  what- 
ever." Newman  v.  James,  12  Ala.  29. 
And  where  one  clause  of  a  will  applies 
the  words,  "  in  trust  for  the  separate 
use,"  to  certain  property,  and  another 
applies  to  certain  property  the  words 
"in  trust"  only,  the  separate  use  may 
by  construction  embrace  the  whole. 
Davis  V.  Cain,  1  Ired.  Eq.  304.  The 
word  "  exclusively  "  in  the  wife's  favor 
is  held  to  exclude  the  husband.  Gould 
V.  Hill,  18  Ala.  84.  So,  too,  "  to  be 
hers  and  hers  only."  Ellis  v.  "Woods, 
9  Rich.  Eq.  19;  Ozley  v.  Ikelheimer, 
26  Ala.  332. 

Trust,  to  pay  income  to  a  wife  "  for 
and  during  the  joint  lives  of  her  and 
her  husband,  taking  her  receipt  there- 
for," is  held  to  give  her  a  sole  and  sep- 
arate estate  in  the  income.  Charles  v. 
Coker,  2  S.  C.  n.  s.  122.  Trust  to 
"  exclusive  use,  benefit,  and  behoof  "  is 
held  sufficient  to  create  a  separate  use. 
Williams  v.  Avery,  38  Ala.  115.  So, 
too,  "for  her  own  use  and  benefit,  in- 
dependent of  any  other  person."  Wil- 
liams V.  Maull,  20  Ala.  721 ;  Ashcraft 
V.  Little,  4  Ired.  Eq.  236.  So,  too,  "  ab- 
solutely," in  a  suitable  connection. 
Brown  v.  Jolmson,  17  Ala.  232;  Short 
V.  Battle,  52  Ala.  4-56.  So,  too,  "  to  be 
for  her  own  and  her  family's  use  during 
her  natural  life."  Heck  v.  CUppenger, 
5  Penn.  St.  385 ;  Hamilton  v.  Bishop, 
8  Yerg.  33.  Or,  "  for  the  use  and  bene- 
fit of  the  wife  and  her  heirs."  Good  v. 
Harris,  2  Ired.  Eq.  630.  Or,  "  not  to  be 
sold,  bartered,  or  traded  by  the  hus- 
band."    Woodrum    v.   Kirkpatrick,   2 

186 


Swan,  218;   Clarke   v.   Windham,   12 
Ala.  798. 

On  the  other  hand,  there  is  authority 
against  permitting  such  expressions  as 
tliese  to  create  the  separate  use  :  "  For 
the  use  and  benefit  of."  Clevestine's 
Appeal,  15  Penn.  St.  499 ;  Fears  v. 
Brooks,  12  Ga.  198  ;  Tennant  v.  Stoney, 
1  Rich.  Eq.  222;  Prout  v.  Roby,  15 
Wall.  471;  Merrill  v.  Bullock,  105 
Mass.  480;  Guishaber  v.  Hairman,  2 
Bush,  320.  Or,  to  the  wife  "in  her 
own  right,"  as  in  the  English  cases. 
lb.  supra,  §  105.  Or,  "  for  the  joint 
use  of  husband  and  wife."  Geyer  v. 
Branch  Bank,  21  Ala.  414.  Cf.  Charles 
V.  Coker,  2  S.  C.  n.  s.  122.  See  post, 
ch.  14,  as  to  conveyances  to  hus- 
band and  wife.  Or,  "  to  her  and  the 
heirs  of  her  body  and  to  them  alone," 
and  similar  expressions.  Clevestine's 
Appeal,  15  Penn.  St.  499;  Bryan  v. 
Duncan,  11  Ga.  67  ;  Foster  v.  Kerr,  4 
Rich.  Eq.  390.  Or  where,  instead  of 
restraint  of  husband's  right  of  disposi- 
tion, is  stated  a  mere  exemption  from 
liability  for  his  debts.  Harris  v.  Harbe- 
son,  9  Bush,  397  ;  Gillespie  i:  Burlinson, 
28  Ala.  551.  But  see  Young  v.  Young, 
3  Jones  Eq.  2(50.  Or,  to  some  one's 
wife,  without  further  exclusive  descrip- 
tion. Moore  v.  Jones,  13  Ala.  296 ; 
Fitch  V.  Ayer,  2  Conn.  143;  Shirley  v. 
Shirley,  9  Paige,  364. 

But  the  words,  to  the  wife's  "sole 
and  separate  use,"  are  most  common- 
ly applied.  Or,  "solely  for  her  own 
use."  See  last  c,  §  105.  Or,  "for  the 
sole  use  and  benefit  of."  Schoul. 
Hus.  &  Wife,  §§  226,  227,  and  cases 
cited. 

1  Good  V.  Harris,  2  Ired.  Eq.  630; 
Hamilton  v.  Bishop,  8  Yerg.  33;  An- 
derson v.  Brooks,  11  Ala.  953. 

•^  Beaufort  v.  Collier,  0  Humph.  487  ; 


CHAP.  IX.]  wife's    separate   PROPERTY.  §  125 

On  the  whole,  it  is  apparent  that  there  is  much  contrariety 
in  the  decisions,  so  far  as  relates  to  technical  expression. 
Courts  of  equity,  as  such,  will  not  deprive  the  husband  of 
his  legal  rights  upon  any  doubtful  construction  of  language.^ 
But  the  question  relates  rather  to  intention,  to  substance, 
and  not  literal  expression  ;  and  any  language  is  now  deemed 
usually  sufficient,  whatever  the  technical  words,  which  clear- 
ly expresses  the  intent  to  create  a  separate  estate  for  the  wife, 
independently  of  her  husband's  control.^ 

In  the  courts  of  this  country,  moreover,  the  statute  policy 
is  found  to  supplement  equity.  As  a  general  rule  an  equita- 
ble trust  by  instrument  requires  the  construction  of  that  in- 
strument to  operate.  But  this  does  not  necessarily  conclude 
the  wife.  For,  while  an  equitable  separate  estate  is  created, 
where  the  intent  to  exclude  the  marital  rights  of  the  husband 
clearly  and  unequivocally  appears  from  the  force  and  certainty 
of  the  terms  employed,  the  local  statute  may  intervene  where 
the  intent  is  doubtful,  equivocal,  or  open  to  speculation,  and 
fix  the  character  of  the  estate  as  the  wife's  separate  statutory 
and  legal  estate.^  On  the  other  hand,  a  conveyance  or  trust 
duly  created  for  a  married  woman's  separate  benefit  and  duly 
expressed,  is  to  be  regarded  as  her  equitable  rather  than  her 
statutory  estate.'* 

§  125.  Equity  Doctrine ;  Acquisition  by  Contract ;  Produce 
and  Income.  — A  married  woman  cannot  by  contract  acquire 
any  property  to  her  separate  use ;  but  the  benefit  of  her  con- 
tract, if  any,  enures  to  her  husband.^ 

The  savings  of  the  interest  arising  from  the  separate  estate 
of  a  married  woman  are  as  much  separate  property  as  the 
principal,  unless  she  has  suffered  them  to  pass  under  her  hus- 
band's marital  control.     And  property  purchased  with  such 

O'Kill  V.  Campbell,  3  Green  Ch.  13 ;  ation  of  parol  trusts  for  separate  use, 

Ordway  v.  Bri^lit,  7  Heisk.  681.  see  Sclioul.  Hus.  &  Wife,  §  228;  Por- 

1  Buck  y.  Wroten,  24  Gratt.  250;  ter  v.  Bank  of  Rutland,  19  Vt.  410; 
Bowen  v.  Sebree,  2  Bush,  112.  Spaulding  v.  Day,  10  Allen,  96 ;  Wat- 

2  See  Prout  v.  Eoby,  15  Wall.  471 ;  son  v.  Broaddus,  6  Bush,  328. 
Gaines  v.  Poor,  3  Met.  (Ky.)  503.  ^  Lansier   v.  Ross,  1  Dev.  &   Bat. 

3  Short  V.  Battle,  52  Ala.  456.  Eq.  39.     But  see  Pinney  v.  Fellows, 

4  Pepper  iJ.  Lee,  53  Ala.  33  ;  Musson  15  Vt.  525;  Schoul.  Hus.  &  Wife, 
V.  Trigg,  51  Miss.  172.     As  to  the  ere-  §  250. 

187 


§  127  THE  DOMESTIC   EELATIONS.  [PAET  n. 

savings  belongs  to  her  and  continues  subject  to  the  same 
rules.^  But  furniture  purchased  by  the  wife  with  the  income 
of  her  separate  estate,  and  mixed  with  the  furniture  of  the 
husband,  becomes  presumably  the  property  of  the  husband, 
unless  it  was  understood  between  them,  at  the  time  of  the 
purchase,  that  the  property  should  be  kept  by  him  as  her 
trustee  merely  ;  ^  for  it  is  both  natural  and  proper  that  the 
wife  should  bestow  her  income  so  as  to  follow  the  common- 
law  rule,  thus  helping  to  defray  the  family  expenses  and 
maintain  the  household  establishment. 

§  126.  Equity  Doctrine ;  Preserving  Identity  of  Fund.  —  In- 
deed, as  to  mingled  funds  generally,  the  rule  applies  that 
equity  will  not  interfere  where  a  fund  set  apart  for  the  wife's 
sole  benefit  has  become  mixed  with  other  funds  beyond  the 
possibility  of  identification, ^  But,  on  the  other  hand,  the 
proceeds  of  a  transfer  of  the  wife's  separate  property,  which  it 
is  understood  shall  be  the  wife's,  may  be  followed  by  her  in 
equity,  provided  she  can  trace  the  identity,  and  has  acted 
consistently  with  her  claim  of  title,  even  though  the  husband 
takes  the  title  in  himself.*  A  distinction  may  sometimes  be 
requisite  between  the  case  where  a  wife  asserts  her  equitable 
title  against  her  husband,  and  that  where  her  title  is  claimed 
against  bona  fide  purchasers  from  the  husband,  having  neither 
actual  nor  constructive  notice  of  her  title.^ 

§  127.  Equity  Doctrine;  Separate  Use  only  in  Married  State  ; 
How  Ambulatory.  —  In  the  United  States,  as  in  England,  the 
separate  estate  in  equity  continues  only  during  the  marriage 
state,  with  probably  similar  qualifications.^  The  husband 
surviving  his  wife  has  the  same  rights  in  her  separate  estate 
as  in  her  other  property,  even  though  another  be  appointed 
administrator.'^  The  estate  of  the  trustee,  as  such,  terminates 
on  the  wife's  death.^     And  yet  if  the  husband,  on  survivor- 

1  Merritt    v.   Lyon,   3   Barb.    110 ;  ^  c^gg  siipra,  §  108. 
Hort  V.  Sorrell,  11  Ala.  386.     See  Kee          ^  Supra,  §  107. 

V.  Vasser,  2  Ired.  Eq.  553.  See  supra,  ^  Spann  v.  Jennings,  1  Hill  Ch.  325; 
§  106.  Good  V.  Harris,  2  Ired.  Eq.  630;  Mc- 

2  Sliirley  v.  Shirley,  9  Paige,  8G3.         Kay  v    Allen,   6  Yerg.   44.     And  see 

3  Buck  V.  Ashbrook,  59  Mo.  200.  Cooney  v.  Woodburn,  33  Md.  320,  where 
*  Dula    V.   Young,   70  N.    C.   450;     wife  left  no  issue  surviving. 

Haden  v.  Ivey,  51  Ala.  381.  ^  Bercy  v.  Lavretta,  63  Ala.  374. 

188 


CHAP.  IX.]     wife's  separate  PROPERTY.  §  129 

ship,  is  entitled  to  his  wife's  separate  personal  estate  by  virtue 
of  his  marital  rights,  he  must,  in  order  to  obtain  it  from 
others,  and  have  a  firm  title  against  creditors,  take  out  letters 
of  administration,  as  American  cases  hold,  —  at  least  where 
antenuptial  debts  of  the  wife  have  not  been  recovered  during 
marriage.^ 

Consistently  with  its  intent,  the  separate  use  may  have  an 
ambulatory  operation,  as  under  the  English  rule,  ceasing 
when  the  wife  becomes  a  widow,  and,  if  left  undisposed  of, 
reviving,  supposing  she  marries  again.^  Where  the  trust  for 
a  wife's  sole  benefit  is  expressed  to  be  free  from  the  control 
of  "  any  present  or  future  husband,"  equity  will  not  set  the 
trust  aside  on  the  death  of  a  husband.^  But  it  is  held  in  this 
country  that  if  a  married  woman  having  a  separate  estate  sur- 
vives her  husband,  tlie  restraints  upon  the  disposal  of  the 
estate,  inconsistent  with  its  general  character,  cease  with  the 
coverture.^ 

§  128.  Equity  Doctrine  ;  "Whether  Marital  Obligations  Affected. 
—  The  English  doctrine  that  the  wife's  separate  estate  is  not 
necessarily  liable  for  her  own  general  or  antenuptial  debts  is 
also  admitted  here.^  Nor,  in  the  absence  of  an  intention  on 
the  wife's  part  to  make  such  estate  liable,  can  it  be  subjected  to 
her  general  debts  contracted  during  coverture.^  And  in  gen- 
eral the  husband's  obligation  to  maintain  his  wife  and  family 
remains  unaffected  by  the  fact  that  the  wife  holds  separate 
property.'' 

§  129.  Equity  Doctrine  ;  Restraint  upon  Anticipation.  —  Am- 
erican courts  have  seldom  to    consider    clauses  of  restraint 

1  McKay  v.  Allen,  6  Yerg.  44;  Appeal,  92  Penn.  St.  504;  Bercy  v. 
Schoul.  IIus.  &  Wife,  §  233.  Lavretta,  63  Ala  374. 

2  Supra,  ^107.  6  Vanderheyden  i'.  Mallory,  1  Comst. 

3  O'Kill  V.  Campbell,  3  Green  Ch.  452. 

13.  6    Knox  i,\  Picket,  4  Desaus.  92;  Gee 

*  Smith    V.    Starr,    3    Whart.    62  ;  v.  Gee,  2  Dev.  &  Bat.  103 ;  Haygood  v. 

Pooley  V.  Webb,  3  Cold.  599;  Thomas  Harris,  10  Ala.  291 ;  Curtis  v.  Engel,  2 

V.  Harkness,  13  Bush,  23.     See  Perry  Sandf.  Ch.  287.     But  a  disposition  to 

Trusts,  §  652;  Schoul.  Hus.  &  Wife,  overthrow  this  iiarsh  rule  appears  in 

§  234.     Por  a  peculiarity  in  the  Penn-  some   States.     Schoul.   Hus.   &   Wife, 

sylvania  rule  as   to  contemplation   of  §235;  Dickson  y.  Miller,  11  S.  &  M.  594. 

future   marriage,    in    such   trusts,   see  ''  Meth.    Ep.    Church    v.   Jaques,    1 

Schoul.  Hus.  &  Wife,  §  234 ;  Snyder's  Johns.  Ch.  450. 

189 


§  130  THE   DOMESTIC   RELATIONS.  [PAET  II. 

against  anticipation  or  alienation,^  a  subject  to  which  English 
chancery  courts  have  devoted  so  much  attention.  Restrain- 
ing a  wife's  power  to  deal  with  her  separate  property  seems, 
in  American  policy,  too  much  like  denying  her  a  separate 
property.  Yet  there  are  good  grounds  for  such  constraint ; 
and  in  various  instances  our  State  courts  find  occasion  to 
recognize  such  clauses. ^  The  restraint  is  held,  as  in  England, 
to  apply  equally  to  real  or  personal  property,  and  to  estates 
in  fee  or  for  life.  It  will  come  into  operation,  like  the  separate 
use  to  which  it  is  attached,  where  a  woman  marries  ;  but  it 
exists  only  in  the  marriage  state,  since  one  sui  juris  is  unre- 
strainable  by  any  such  means  from  exercising  the  ordinary 
rights  of  ownership,  whether  widow  or  maiden.^ 


CHAPTER  X. 


THE    wife's     DOMINION"    OVEB     HER    EQUITABLE    SEPARATE 

PROPERTY. 

§  130.  General  Principle  of  Wife's  Dominion.  —  The  right  to 
enjoy  property  carries  with  it,  universally,  as  a  necessary  in- 
cident, the  right  of  its  free  disposal.  All  other  things,  then, 
being  equal,  we  shall  expect  to  find  that  married  women, 
when  allowed  to  hold  estate  to  their  separate  use,  are  per- 
mitted to  sell,  convey,  give,  grant,  bargain,  or  otherwise  dis- 
pose of  it ;  and  further,  to  encumber  it  with  their  debts  as 
they  please.  Public  policy  may,  however,  restrain  their 
dominion.  Our  present  discussion  relates  to  the  wife's  do- 
minion over  her  equitable  separate  property.  The  wife's 
dominion  over  statutory  separate  property,  or  that  held  under 

1  Supra,  §  110.  quivocal   expression   of    intent   to   re- 

2  Freeman  v.  Flood,  16  Ga.  528;  s^train  the  jus  disponendl.  A  declaration 
(Jirta  in  Wilburn  v.  McCalley,  63  Ala.  that  the  property  shall  not  be  liable  for 
436 ;  Burnett  v.  Hawpe,  25  Gratt.  481.  her  debts,  &c.,  is  insuflacient.     Witsell 

3  Wells  V.  McCall,  64  Penn.  St.  207  ;  v.  Charleston,  7  S.  C.  88  ;  Radford  v. 
Parker  v.  Converse,  5  Gray,  336.  Carwile,  13  W.  Va.  572. 

There  must  be  a  clear  and  une- 

190 


CHAP.  X.]     DOMINION:   WIFE's  EQUITABLE  PROPEr.TY.      §  132 

our  married  women's  acts,  will  be  reserved  for  the  chapter 
succeeding. 

§  131.  Wife,  unless  restrained,  has  Full  Po-wer  to  dispose.  — 
The  clause  of  restraint  upon  anticipation  or  alienation,  and 
its  important  effect  upon  the  wife's  power  of  disposal,  we  have 
already  dwelt  upon.  Apart  from  this,  in  England,  it  is  the 
general  rule,  so  far  at  least  as  concerns  personal  property, 
that  from  the  moment  the  wife  takes  the  property  to  her  sole 
and  separate  use,  from  the  same  moment  she  has  the  sole  and 
separate  right  to  dispose  of  it ;  for,  upon  being  once  permitted 
to  take  personal  property  to  her  separate  use  as  a  feme  sole, 
she  takes  it  with  all  its  privileges  and  incidents,  including  the 
Jus  disponendi}  And  while  she  ma}^  be  restrained  by  lan- 
guage of  the  instrument  under  which  her  title  is  acquired, 
amounting  to  a  clause  restraining  anticipation,  for  instance, 
yet  the  intention  to  restrain  her  must  be  clearly  expressed  ; 
or  else  she  may  deal  with  the  property  as  she  pleases,  either 
by  acts  inter  vivos,  or  by  testamentary  disposition.^  Her 
power  of  disposition  is  not  confined  to  interests  vested  in 
possession,  but  extends  to  reversionary  interests  settled  to  her 
separate  use.^ 

§  132.  Same  Principle  applies  to  Income.  —  Tlie  same  prin- 
ciple applies  to  the  income  and  profits  and  rents  of  the  wife's 
separate  property.  The  wife  has  the  same  control  over  her 
savings  out  of  her  separate  estate  as  over  the  separate  estate 
itself;  "for,"  to  use  the  somewhat  involved  metaphor  of  Lord 
Keeper  Cowper,  so  often  quoted,  "  the  sprout  is  to  savor  of 
the  root,  and  to  go  the  same  way."  *  Following  this  general 
doctrine,  the  wife,  if  unrestricted  by  the  terms  of  the  trust, 
may  anticipate  and  encumber  rents  settled  apart  for  her  sep- 

1  Fettiplace  v.  Gorges,  1  Ves.  Jr.  48;  Ves.  192  ;  Headen  v.  Kosher,  1  M'Cl.  & 
3  Bro.  C.  C.  9  ;  Peaohey  Mar.  Settl.  Y.  89 ;  Donne  v.  Hart,  2  Russ.  &  M. 
261,  262.     See  20  &  21  Vict.  c.  57,  the     860. 

"reversionary  act."  *  Gore  v.  Knight,  2  Vern.  535;  s.  c. 

2  Richu.  Cockell,  9  Ves.  369;  Moore  Free,  in  Ch.  255.  See  also  Messenger 
V.  Morris,  4  Drew.  38  ;  Darkin  v.  Dar-  i-.  Clarke,  5  Exch.  392  ;  Peaohey  Mar. 
kin,  17  Beav.  581;  Caton  v.  Hideout,  Settl.  262;  Newlands  v.  Paynter,  10 
1  Mac.  &  Gord.  601.  Sim.  377 ;  s.  c.  on  appeal,  4  M.  &  Cr. 

3  2  Bright  Hus.  &  Wife,  222;  Macq.  408;  Humphery  v.  Richards,  2  Jur. 
Hus.  &  Wife,  295 ;  Sturgis  v.  Corp,  13  n.  s.  432. 

191 


§  134  THE   DOMESTIC   RELATIONS.  [PART   11. 

arate  use.^  But  where  the  trust,  by  suitable  expression, 
restrains  the  wife  from  anticipation,  permitting  her  only  to 
receive  the  income  from  her  trustee  from  time  to  time  as  it 
falls  due,  she  cannot  anticipate  and  encumber  her  income. ^ 

§  133.  Technical  DifBculties  as  to  disposing  of  Real  Estate.  — 
Where  the  wife's  separate  property  consists  of  real  estate,  her 
power  of  disposition  is  affected  by  technical  difficullies  as  to 
the  method  of  executing  conveyances.^  But  it  has  been  sug- 
gested in  England  that,  according  to  the  principle  of  modern 
equity  cases,  the  heir  ought  to  be  treated  as  a  trustee,  in  case 
the  wife  had  conveyed  her  beneficial  interest  by  deed  exe- 
cuted by  herself  alone,  and  that  thus  her  sole  conveyance 
would  be  allowed  to  operate.*  In  most  parts  of  the  United 
States  a  married  woman  can  only  dispose  of  her  real  estate, 
whether  legal  or  equitable,  by  a  conveyance  according  to 
statute,  which  the  husband  executes  in  token  of  assent;  a 
partial  reason  for  this  being  that  the  husband  has  his  rights 
of  curtesy  even  in  lands  settled  to  his  wife's  separate  use.^ 
Rents  and  profits  of  her  separate  land,  or  an  annuity  charged 
upon  land,  follow  the  more  liberal  rule  of  jDcrsonal  property 
held  as  her  separate  estate,^  unless  afterwards  converted  into 
land,'^ 

§  134.  Liability  of  Separate  Estate  on  Wife's  Engagements; 
English  Doctrine.  —  As  a  corollary  to  our  proposition,  the  wife 

1  Cheever  v.  Wilson,  0  Wall.  108.  ^  ghipp  y_  Bowmar,  5  B.  Mon.  1G3 ; 

2  Chancellor  Kent,  in  Jaques  v.  Radford  v.  Carwile,  13  W.  Va.  572 ;  2 
Methodist  Episcopal  Church,  3  Johns.  Perry  Trusts,  §  656;  supra,  §§  94-97; 
Ch.  77.  McChesney  v.  Brown,  25  Gratt.  393 ; 

3  2  Roper  Hus.  &  Wife,  182 ;  1  Koltenback  v.  Cracraft,  36  Ohio  St. 
Bright  Hus.  &  Wife,  22i.  See  Ex  parte  584  ;  Miller  v.  Albertson,  73  Ind.  343. 
Ann  Shirley,  5  Bing.  226,  cited  in  But  in  New  York,  by  way  of  an  appoint- 
Macq.  Hus.  &  "Wife,  296.  See  also  ment,  a  married  woman  may  convey 
Peachey  Mar.  Settl.  267 ;  Harris  r.  such  interests  without  the  joinder  of 
Mott,  14  Beav.  169.  her  husband.     Albany  Eire  Ins.  Co.  v. 

*  Macq.  Hus.  &  Wife,  296,  297  ;  2  Bay,  4  Comst.  9.     See  Armstrong  v. 

Story  Eq.  Juris.  §  1390,  and  cases  cited  ;  Ross,  5  C.  E.  Green,  109. 
3  Sugd.  V.  &  P.  App.  62 ;  Newcomen  6  Cheever  v.  Wilson,  9  Wall.  108 ; 

V.  Hassard,  4  Ir.  Ch.  274  ;  Burnaby  v.  Vizoneau  v.   Pegram,   2    Leigh,   183 ; 

Griffin,  3  Yes.  266;  Peachey  Mar.  Settl.  Major  v.  Lansley,  2  R.  &  M.  355. 
268.     The  statute  referred  to  as  raising  '  McChesney   v.  Brown,  25   Gratt. 

technical  difficulties  in  real  estate  is  3  393. 
&  4  Will.  IV.  c.  74. 

192 


CHAP.  X.]     DOMINION:    WIFE's  EQUITABLE  PKOPEETY.     §  134 

may  enter  into  contract  with  reference  to  her  separate  prop- 
erty somewhat  as  a  feme  sole.  Formerly  it  was  otherwise  ; 
and  for  a  long  period  the  English  courts  of  equity  refused  to 
married  women  having  separate  estate  the  power  to  contract 
debts. ^  But  the  unfairness  of  permitting  a  wife  to  liold  and 
enjoy  her  separate  property  after  she  had  incurred  debts 
specificall}'  upon  the  faith  of  it  soon  became  evident,  as  well 
as  the  inconvenience  she  suffered  in  being  unable  to  find 
credit  where  she  meant  to  deal  fairly.  So  the  courts  felt 
compelled,  after  a  while,  to  admit  that  she  might  in  equity 
charge  her  separate  estate  by  a  written  instrument,  executed 
with  a  certain  degree  of  formalit}^  such  as  a  bond  under  her 
hand  and  seal.^  One  precedent  in  the  right  direction  leads 
to  another,  and  soon  less  formal  instruments  were  brought, 
one  after  another,  under  this  rule  ;  promissory  notes,  bills  of 
exchange,  and  lastly  written  instruments  in  general.^  Even 
here  the  court  could  not  safely  intrench  itself ;  for  the  incon- 
sistency of  drawing  distinctions  between  the  different  sorts  of 
engagements  of  a  married  woman  having  separate  estate  could 
be  readily  shown  ;  but  it  made  a  halt.  The  doctrine  of  an 
equitable  appointment  was  alleged  to  support  the  new  distinc- 
tion.^ Sound  reasoning  at  last  proved  too  strong  an  antago- 
nist ;  this  position  was  abandoned  ;  and  it  became  at  length 
the  settled  doctrine  of  the  equity  courts  of  England  that  the 
engagements  and  contracts  of  a  married  woman,  whether 
general  or  relating  specifically  to  her  separate  propertj^  are 
to  be  regarded  as  constituting  debts,  and  that  her  property  so 
held  is  liable  to  the  payment  of  tliem,  whether  the  contract 
be  expressed  in  writing  or  not ;  and  all  the  more  so  if  she 
lives  apart  from  her  husband,  and  the.  debt  could  only  be 

1  Vauglian  v.  Vanderstegen,  2Drew.  Kirkwall,  3  Madd.  387  ;  Master  v.  Ful- 
180;  Peacliey  Mar.  Settl.  269;  New-  ler,l  Ves.  Jr.  513;  Gaston  u.  Frankum, 
comen  v.  Hassard,  4  Ir.  Cli.  274.  2  De  G.  &  Sm.  5G1  ;  s.  c  on  appeal,  16 

2  Biscoe  i\  Kennedy,  1  Bro.  C.  C.  Jur.  507;  Peacliey  Mar.  Settl.  270,  and 
17;  Hulme  v.  Tenant,  1  Bro.  C.  C.  16;  cases  cited;  Tullett  v.  Armstrong,  4 
Norton  v.  Turvill,  2  P.  Wms.  144;  Beav.  323;  Owen  v.  Homan,  4  11.  L. 
Tullett  V.  Armstrong,  4  Beav.  323.  Cas.  997.     Taking  a  lease  and  agree- 

8  See  Murray  v.  Barlee,  per  Lord    ing  to  pay  rent  conies  within  the  rule. 
Brougham,  3  Myl.  &  K.  210;  Bullpin     Gaston  i;.  Frankum,  su;;ra. 
V.  Clarke,  17  Ves,  365  ;  Stuart  v.  Lord         *  Field  v.  Sowle,  4  Russ.  112. 

13  193 


§  134  THE   DOMESTIC    RELATIONS.  [PAET   II. 

satisfied  from  her  separate  property.^  "  Inasmuch  as  her 
creditors  have  not  the  means  at  law  of  compelling  payment  of 
those  debts,"  says  Lord  Cottenham,  "  a  court  of  equity  takes 
upon  itself  to  give  effect  to  them,  not  as  personal  liabilities, 
but  by  laying  hold  of  the  separate  property  as  the  only  means 
by  which  they  can  be  satisfied."  ^ 

But  while  the  contract  for  payment  of  money  made  by  a 
married  woman  having  separate  estate  creates  a  debt,  it  is, 
practically  considered,  only  a  debt  sub  modo,  when  compared 
with  the  debt  of  a  man  or  an  unmarried  woman.  It  cannot 
be  enforced  against  her  at  law ;  and  Lord  Cottenham's  lan- 
guage indicates  that  it  is  enforceable  in  equit}^  not  on  the 
ground  that  she  incurred  a  personal  obligation,  but  because 
there  is  property  upon  which  the  obligation  may  be  fastened. 
Hence  it  is  said  that  there  can  in  no  case  be  a  decree  against 
a  married  woman  in  personam  ;  the  proceedings  are  simply 
against  her  separate  property  in  rem?  And  though  she  is  a 
necessary  party  to  a  suit  to  enforce  pa5'ment  against  her  sepa- 
rate estate,  yet,  if  that  estate  be  held  in  trust  for  her  separate 
use,  the  suit  must  be  against  the  trustees  in  whom  that  prop- 
erty is  vested ;  the  decree  in  such  case  being  rendered,  not 
against  her,  but  against  the  trustees,  to  compel  payment  from, 
her  separate  estate.  Moreover,  if  the  wife  survive  her  hus- 
band, although  the  creditors  may  still  enforce  their  demand 
in  equity  against  her  separate  estate,  yet  her  person  and  her 
general  property  remain  as  completely  exempted  from  liability 
at  law  and  in  equity  as  in  other  cases  of  debts  contracted  by 
her  during  coverture.'^ 

1  Peachey  Mar.  Settl.  271,  272,  and  Settl.  273.    But  see  Keogh  v.  Cathcart, 

cases  cited  ;  Vauglian  v.  Vanderstegen,  11  Ir.  Ch.  285. 

2  Drew.    184;    Owens   v.   Dickenson,  *  Vauglian  y.  Vanderstegen,  2  Drew. 

Craig  &  Phil.  48;   Macq.  Hus.  &  Wife,  184;  Peacliey  Mar.  SetU.  273;  Macq. 

303;  Picard  v.  Iline,  L.  R.  5  Ch.  274.  Hus.  &  Wife,  304.     But  her  promissory 

But  see  Newcomen  r.   Hassard,  4  Ir.  note,  given  during  coverture  so  as  to 

Ch.  274  ;  1  Sugd.  Pow.  206,  7th  ed.  bind  lier  separate  estate,  is  a  good  con- 

■■2  Owens  V.  Dickenson,  Craig  &  Phil,  sideration  for  another  promissory  note, 

48.  given  after  her  husband's  death,  for  a 

3  Hulme  V.  Tenant,  1  Bro.  C.  C.  16;  balance  then  due,  though  the  former 

Ashton  V.  Aylett,  1   Myl.  &  Cr.  Ill ;  note  be  barred  by  the  statute  of  limi- 

Macq.  Hus.  &  Wife,  304;  Peachey  Mar.  tations.     Latouche  v.  Latouche,  3  Hurl. 


&  Colt.  576. 


194 


CHAP.  X.]     DOMINION:    WIFE's  EQUITABLE  PROPERTY.      §  184 

Here,  however,  the  fictions  of  equity  create  a  new  practical 
difficulty.  For  if  the  wife  be  a,  f erne  sole  at  all,  with  reference 
to  her  separate  property,  must  she  not  have  power  to  bind 
herself  personally?  In  Steady.  Nelson  a  husband  and  wife 
undertook,  for  valuable  consideration,  by  writing  under  their 
hands,  to  execute  a  mortgage  of  her  separate  estate.  The 
husband  died.  Lord  Langdale  held  that  the  surviviuij  wife 
was  bound  by  the  agreement,  and  ordered  a  specific  perform- 
ance.^ Certainly  the  ground  of  this  decision  must  have  been 
that  the  obligation  was  not  upon  her  property  alone,  but  upon 
her  person.  At  the  same  time  it  is  readily  admitted  that 
there  are  reasons  of  polic}'-  why  the  wife  should  be  exempted 
from  personal  execution  during  coverture.  This  latter  view 
accords  with  the  common-law  practice  in  analogous  cases.^ 
Perhaps,  then,  the  more  consistent  view  of  the  subject  would 
be  that  the  wife  incurs  a  personal  obligation,  morally  and 
legally,  on  such  contracts,  express  or  implied,  as  she  may 
make  during  coverture  with  reference  to  lier  separate  prop- 
erty ;  but  that  the  general  disabilities  of  coverture  interpose 
obstacles  to  the  enforcement  of  remedies  by  a  creditor,  which 
obstacles  the  courts  of  equity  feel  bound  to  regard ;  and  hence 
that  they  confine  the  remedies  to  her  separate  estate,  upon 
the  faith  of  which,  it  may  reasonabl}'  be  presumed,  the  cred- 
itor chose  to  rely.  And  this  conclusion  is  that  preferred  on 
the  whole  by  the  courts.^ 

As  a  general  rule,  in  England,  it  became  settled,  therefore, 
that  wherever  a  married  woman,  having  propertj^  settled  to 
her  separate  use,  enters  into  any  contract  by  which  it  clearly 
appears  that  she  intends  to  create  a  debt  as  against  herself 
personally,  it  will  be  assumed  that  she  intended  that  the 
money  should  be  paid  out  of  the  only  property  by  which  she 
could  fulfil  the  engagement.* 

A  married  woman,  having  separate  estate,  without  a  clause 
restraining  her  right  of  disposition,  might  charge  and  encum- 

1  2  Beav.  245;  Macq.  Hus.  &  Wife,  trine  of  equitable  appointment  seems 
804.  to  be  exploded.     Lord  Justice  Turner 

2  Sparkes  v.  Bell,  8  B.  &  C.  1.  in  Joimson  v.  Gallagher,  3  De  G.  F.  & 

3  2  Perry  Trusts,  §§  655-663 ;  Lewin  J.  494  ;  supra,  p.  193. 

Trusts,  5th  Eng.  ed.  542,  543.    The  doc-         *  Earl  v.  Ferris,  19  Beav.  69. 

195 


§  135  THE   DOMESTIC    RELATIONS.  [PART   11. 

ber  it  in  any  manner  she  chose,  either  as  security  for  her 
husband's  debts,  her  own,  or  those  of  a  stranger  ;  provided 
she  did  not  appear  to  have  been  imposed  upon  in  the  transac- 
tion.^  A  married  woman  might  bind  the  corpus  of  her  sep- 
arate property  by  her  compromise  of  a  suit  which  she  had 
instituted  by  her  next  friend.^  She  might  also  contract  for 
the  purchase  of  an  estate,  and,  even  though  the  contract 
made  no  reference  to  her  separate  propert}^,  it  was  bound  by 
her  agreement.^ 

§  135.  The  Same  Subject;  Latest  English  Doctrine.  —  But  in 
the  latest  English  decisions  a  new  turn  —  and  that  towards 
the  better  protection  of  wives  having  separate  property  against 
their  own  imprudent  disposition  thereof  —  is  indicated,  which 
"we  may  attribute  in  some  measure  to  the  legislative  changes 
concerning  married  women's  rights,  agitated  on  both  sides  of 
the  ocean,  and  the  influence  of  contemporaneous  American 
equit}'-  decisions  evoked  by  the  prior  legislation  of  our  respec- 
tive States  upon  the  subject.  In  Johnson  v.  Gallagher^  de- 
cided in  1861  by  the  English  Court  of  Appeal  in  Chancery, 
the  court  checked  the  loose  disposition  to  fastening  liabilities 
of  a  married  woman,  no  matter  how  improvidently  incurred, 
upon  her  separate  estate,  on  the  mere  faith  of  an  implied 
engagement.^  It  would  still  appear  that  in  England  a  mar- 
ried woman  may,  upon  her  separate  credit,  not  only  give  her 
banker  a  lien  for  her  overdrafts,^  but  employ  a  solicitor,  or  a 
surveyor,  or  a  builder,  or  a  tradesman,  or  hire  laborers  or 
servants,  all  on  the  credit  or  for  the  immediate  benefit  of  her 
separate    property ;  ^    and    that    her   corporation   shares   are 

1  Clerk  V.  Laurie,  2  Hurl.  &  Nor.  *  Johnson  v.  Gallagher,  3  De  G.  F. 
199 ;  Peachey  Mar.  Settl.  292.  See  &  J.  494.  And  see  the  prior  English 
Horner  v.  Wheelwright,  2  Jur.  n.s.  367.  cases  very  fully  cited  in  the  opinion  of 
The  same  rule  applied  in  the  United  Lord  Justice  Turner. 

States.    See  post,  §  137 ;  Short  v.  Battle,  ^  London  Bank  of  Australia  v.  Lem- 

52  Ala.  4-56;  Armstrong  v.  Ross,  5  C.  E.  priere,  L.  R.  4  P.  C.  572,  594. 

Green,  109.  ^  See  Lord  Justice  James,  in  Lon- 

2  Wilton  V.  Hill,  25  L.  J.  Eq.  156.  don  Bank  of  Australia  v.  Lempriere, 

3  Dowling  V.  Maguire,  Lloyd  &  supra;  Lord  Justice  Turner,  in  John- 
Goold,  temp.  Plunket,  1 ;  Crofts  v.  Mid-  son  v.  Gallagher,  3  De  G.  F.  &  J. 
dleton,  2  Kny  &  Johns.  194,  reversed  on  494. 

appeal.    And  see  Schoul.  Hus.  &  Wife, 
§243. 

196 


CHAP.  X.]    DOMINION:    WIFE'S  EQUITABLE  PROPERTY.      §  136 

liable  to  assessment.^  Where  a  married  woman  contracts  any 
such  debt  which  she  can  only  satisfy  out  of  her  separate 
estate,  her  separate  estate  will,  in  equity,  be  made  liable  to 
the  debt.^  Doubt  is  thrown,  however,  upon  the  extent  of 
tlie  binding  force  of  engagements  not  for  the  wife's  benefit ; 
and,  on  the  whole,  the  test  in  chancery  seems  to  be  settling, 
at  the  present  day,  towards  regarding  whether  the  transaction 
out  of  which  the  demand  arose  had  reference  to,  or  was  for 
the  benefit  of,  the  wife's  separate  estate  ;  and,  on  the  whole, 
unsatisfactory  as  may  be  this  abstruse  discussion,  circum- 
stances are  likely  to  determine  the  decision  of  each  case,  with 
perhaps  a  growing  partiality  in  favor  of  a  married  woman's 
rights,  and  a  growing  indisposition  to  make  her  suffer. 

§  136.  Dominion  and  Liability  of  Wife's  Separate  Estate  ; 
American  Doctrine.  —  In  this  country,  whenever  the  wife's 
separate  use  has  been  admitted  as  a  doctrine  of  equity,  inde- 
pendently of  statute,  her  right  of  dominion  has  also  been 
recognized.  The  celebrated  New  York  case  of  Jaques  v. 
Methodist  Episcopal  Church,  which  may  justly  be  placed  fore- 
most among  the  very  few  important  American  chancery 
decisions  of  this  class,  established  that  a  feme  covert,  with 
respect  to  her  separate  estate,  and  especially  her  personal 
property,  was  to  be  regarded  in  equity  as  a  fetne  sole,  so  that 
she  might  dispose  of  it  at  pleasure,  except  so  far  as  expressly 
denied  or  restrained  by  the  terms  of  the  instrument  which 
created  the  trust.^  Numerous  American  cases  also  rule,  con- 
formably with  English  precedents,  that  a  married  woman 
may,  by  her  contracts  or  engagements,  bind  her  separate 
property,  it  being  sufficient  that  there  was  an  intention  to 
charge  her  separate  estate  ;  and  further,  that  bj'  contracting 
a  debt  during  coverture  she  furnishes  a  presumption  of  that 


1  Matthewman's  Case,  L.  R.  3  Eq.  McChesney  v.  Brown,  25  Gratt.  39.3 ; 
787.  Patton   v.    Charlestown   Bank,    12  W. 

2  Picard  V.  Hine,  L.  R.  5  Ch.  App.  Va.  587 ;  Wells  v.  Thorman,  37  Conn. 
274.  319  ;  Leaycraft  v.  Hcdden,  3  Green  Ch. 

3  Jaques  v.  Methodist  Episcopal  512;  Fears  v.  Brooks,  12  Ga.  200; 
Church,  17  Johns.  548;  Methodist  Bradford  v.  Greenway,  17  Ala.  805; 
Episcopal  Church  v.  Jaques,  1  Johns.  Shipp  v.  Bowmar,  5  B.  Mon.  163 ;  Kir- 
Ch.  450;  3  ib.  77;  2  Kent  Com.  164;  win  v.  Weippert,  46  Mo.  532. 

197 


§  136  THE   DOMESTIC   RELATIONS.  [PART   II. 

intention,  since  otherwise  her  contract  must  have  been  worth- 
less to  her  creditor.^  In  general,  however,  it  is  to  be  observed 
that  the  American  equity  doctrine  of  the  wife's  power  to 
charge  her  separate  estate,  independently  of  the  married 
women's  acts,  has  fluctuated  somewhat,  as  have  likewise  the 
English  cases,  and  that  not  only  do  American  courts  find 
difficulty,  like  those  of  England,  in  encountering  cases  where 
the  liability  incurred  was  disadvantageous  to  the  wife,  and  at 
the  same  time  not  cleaiiy  charged  by  her  upon  her  separate 
property  ;  but  this  further  source  of  perplexity  appears  more- 
over, namely,  that  local  legislation,  in  these  later  years, 
places  the  rights  of  married  women  on  quite  a  novel  footing. 
Some  States  favor  a  stricter  rule  ;  in  few  States,  indeed,  did 
the  subject  receive  much  development  prior  to  the  second 
half  of  this  century  ;  while  the  polic}^  of  the  married  women's 
acts  themselves,  in  most  jurisdictions,  must  be  opposed  to 
making  such  legislation  disadvantageous  to  her  interests. 
Hence  a  course  of  precedents,  of  later  years,  hardly  less  ab- 
struse and  irreconcilable  than  those  of  the  English  chancery, 
but  somewhat  independent  of  them.  This  doctrine  may 
better  be  studied  at  length  in  our  next  chapter,  in  connection 
with  legislative  changes  affecting  the  wife's  right  of  disposi- 
tion in  this  country.  To  this  extent,  however,  American 
courts  occupy  sure  and  uniform  ground,  namely,  that  while  a 
married  woman  may  not  be  bound  personally  b}^  her  contract, 
the  rule  under  the  statutes  and  independently  of  them^  is, 
that  when  services  are  rendered  her  by  her  procurement,  or 
she  contracts  a  debt  generally,  on  the  credit  and  for  the 
benefit  of  her  separate  estate,  there  is  an  implied  agreement 
and  obligation  springing  from  the  nature  of  the  consideration, 
which  the  courts  will  enforce  by  charging  the  amount  on  her 
separate  property  as  an  equitable  lien.^ 

In  American  chancery  courts,  in  fact,  the  charging  of  the 

1  2Kent  Com.  164,  and  cases  cited;  Ballin  r.  Dillaye,  37  N.  Y.  35;  Arm- 
Schoul.  Hus.  &  Wife,  §  246.  strong   v.   Ross,   5  C.  E.  Green,    109 ; 

2  Wilson  V.  Jones,  46  Md.  349 ;  Coz-  Buckner  i-.  Davis,  29  Ark.  444 ;  Dale 
zcns  r.  Wliitney,  3  R.  I.  79;  Harsh-  r.  Robinson,  51  Vt.  20  ;  Eliott  u.  Gower. 
berger  v.  Algier,  31  Gratt.  52.  12  R.  I.  79. 

3  Owen  V.  Cawley,  36  N.  Y.   600; 

198 


CHAP.  X.]  DOMINION :   WIFE's  EQUITABLE  PROPERTY.    §  136  a 

wife's  separate  estate  by  equity  proceedings  is  presented 
with  reference  sometimes  to  her  equitable,  and  sometimes  to 
her  statutory,  separate  estate.  lu  some  States  the  complete 
jurisdiction  of  trusts  for  separate  use  is  the  creature  of  recent 
statute  ;  ^  in  others,  the  rule  is  deliberately  admitted,  in  chan- 
cery, to  differ  as  to  statutory  and  equitable  separate  estate ;  ^ 
in  others,  once  more,  chancery  seeks,  and  with  true  consis- 
tency, to  apply  one  and  the  same  principle  where  it  takes 
jurisdiction  of  separate  estate  at  all.  The  discrepancy  of  all 
these  modern  American  authorities  relates  chiefly,  (1)  to  de- 
termining the  liability  of  the  wife's  equitable  or  statutory 
separate  estate  for  debts  and  engagements  not  beneficial  to 
the  wife  herself,  or  to  the  estate,  but,  if  at  all,  for  her  hus- 
band's or  a  stranger's  benefit,  and  (2)  to  fixing  the  nature  of 
the  evidence  of  intention  required  for  such  charges.  The 
equitable  rule  in  the  United  States,  more  common  prior  to 
the  married  women's  acts,  appears  to  have  been,  that  the 
wife's  separate  estate  would  be  held  liable  for  all  debts  which 
she,  by  implication  or  expressly,  by  writing  or  b}^  parol, 
charged  thereon,  even  if  not  contracted  directly  for  the  bene- 
fit of  the  estate.^     But  such  is  by  no  means  the  rule  to-day. 

§  136  a.  Property  with  Power  of  Appointment.  —  Property 
limited  to  such  uses  as  a  married  woman  shall  appoint  is  not 
separate  estate.  There  is  a  difference  between  property  sub- 
ject merely  to  her  power  of  appointment,  and  property  settled 
to  her  sole  and  separate  use.  In  the  former  instance  she  may 
dispose  of  the  estate  by  executing  an  instrument  according 
to  the  strict  letter  of  her  authority.  In  the  latter,  she  is 
invested  with  a  beneficial  interest  and  enjoyment,  however 
restricted  may  be  the  dominion  allowed  her  by  the  donee. 
A  married  woman  may,  however,  be  expressly  authorized  to 
appoint  by  will  and  not  by  deed,  and  the  exercise  of  such 
power  in  favor  of  volunteers  may  render  the  appointed  funds 
assets  for  the  satisfaction  of  debts  properly  chargeable  against 

1  See  Hoar,  .J.,  in  Willard  v.  East-  3  2  Kent  Com.  1G4 ;  2  Story  Eq. 
ham,  15  Gray,  328.  Juris.  §§  1.398,  1401,  and  cases  cited; 

2  Musson   V.  TripTR,  51  Miss.   172;  Ballin  z;.  Dillaye,  37  N.  Y.  35. 
Robinson  v.  O'Neal,  5G  Ala.  541. 

199 


§  137  THE  DOMESTIC   RELATIONS.  [PAET  n. 

her  separate  estate.^  In  general,  equity  permits  a  married 
woman  to  dispose  of  property  according  to  the  mode,  if  any, 
prescribed  by  tlie  instrument  under  which  the  separate  use  is 
created. 2 

§  137.  Wife's  Right  to  Bestow  upon  Husband,  Bind  for  his 
Debts,  &c. — A  married  woman,  save  so  far  as  she  is  restrained 
from  anticipation  by  the  terms  of  the  trust,  may  bestow  her 
separate  property  upon  her  husband  by  virtue  of  her  right  of 
disposal  ;  although  at  common  law  no  such  thing  is  known  as 
a  gift  between  husband  and  wife.  Slie  may  likewise  transfer 
it  to  him  for  a  valuable  consideration.^  But  acts  of  this  sort 
are  very  closely  scrutinized ;  and  undue  influence  on  the  part 
of  the  husband,  or  the  fraud  of  botli  husband  and  wUe  upon 
creditors  of  either,  will  often  explain  the  motive  of  such 
transactions,  and  suffice  for  setting  them  aside  in  equity.* 
The  fact  that  the  husband  receives  the  capital  of  his  wife's 
separate  property  raises  the  inference,  not  of  a  beneficial 
transfer  to  him,  but  of  a  transfer  to  him  as  her  trustee.^  A 
gift  to  him  requires  clear  evidence,  such  as  acts  of  dominion, 
or  the  use  of  the  property  for  his  business  or  to  execute  his 
marital  obligations.^ 

So  may  the  wife,  unless  specially  restrained  by  the  trust,  bind 
her  separate  property  for  her  husband's  debts."  It  is  also  well 
settled,  both  under  the  married  women's  acts  of  our  respec- 
tive States,  and  independently  of  them,  that  a  married  woman 
may  execute  a  mortgage  jointly  with  her  husband  to  secure  his 
debts,  in  which  case  she  is  to  be  regarded  as  his  surety  ;  and 
this  applies  to  lands  held  in  her  right,  whether  conveyed  to 
her  separate  use  or  not,  provided  the  conveyance  be  executed 

1  Be  Harvey,  28  W.  R.  73.  ^  Sliirley  v.  Shirley,  9  Paige,  36' 

2  MoCliesney  v.  Brown,  25  Cratt.  Rowe  v.  Howe,  12  Jur.  909.  See  fur 
393;  Knowlfs  v.  Knowles,  86  III.  1;  tlier,  Sciioul.  Hus.  &  Wife,  §248. 
Jaques  v.  Methodist  Episcopal  Church,  The  wife's  bond,  executed  to  her  huS' 
17  Johns.  548  ;  Schoul.  Hus.  &  Wife,  band,  has  been  sustained  in  the  English 
§  247.  cliancery.    Heathey  v.  Thomas,  15  Ves 

3  Lyn  V.  Ashton,  1  Russ.  &  M.  190;  596. 

Macq.  Hus.  &  Wife,  297  ;  2  Kent  Com.  ^  Schoul.  Hus.  &  Wife,  §§  249,  250 

111;  Charles  f.  Coker,  2  S.  C.  N.  s.  123.  2  Kent  Com.  Ill,   and  cases  cited;  S 

4  Pybus  V.  Smith,  1  Ves.  189.  U.  S.  Eq.  Dig.  Hus.  &  Wife.  18  ;  Dal 

5  Rich  V.  Cockell,  9  Ves.  300  ;  Rich-  lam  v.  Walpole,  Pet.  C.  C.  116  ;  Charles 
ardson  v.  Stodder,  100  JNlass.  628.  v.  Coker,  2  S.  C.  n.  s.  123. 

200 


CHAP.  X.]    DOMINION:    WIFE'S  EQUITABLE  PIIOPERTY.      §  138 

by  husband  and  wife  jointly  after  the  usual  manner  of  such 
instruments  under  tlie  statute,  and  no  duress  was  imposed 
upon  her.i  And  she  may  pledge  her  separate  personal  prop- 
erty as  security  in  like  manner.^  And  her  separate  estate 
will  be  bound  by  any  debt  properly  contracted  by  her,  even 
though  her  husband  should  be  the  creditor.^  A  gift  or  con- 
veyance by  a  wife  to  her  husband,  if  fraudulently  or  forcibly 
procured  by  him,  will  be  set  aside  in  equity  upon  her  repre- 
sentation ;  so,  too,  where  it  was  intended  for  his  security,  but 
taken  out  as  absolute;^  but  if  the  rights  of  a  bona  fide  pur- 
chaser without  notice  of  the  fraud  or  force  have  intervened, 
her  own  rights  may  be  impeded  in  the  latter's  favor.^ 

§  138.  Concurrence  of  Wife's  Trustee,  ■whether  Essential. — 
Consistentl}-  with  the  wife's  right  of  dominion  over  her 
separate  estate,  the  rule,  both  in  English  and  American  chan- 
cery courts,  is,  that  the  concurrence  of  the  trustee  of  the  fund 
is  not  essential  to  the  validity  of  her  disposition  thereof.^ 
On  the  contrary,  if  she  has  the  absolute  beneficial  enjoyment 
of  the  fund  by  the  terms  of  the  trust  (there  being  no  clause 
in  restriction  of  her  power),  or  in  such  manner,  if  it  be  real 
estate,  that  the  statute  of  uses  would  execute  the  title  or  use 
in  her,  she  can  compel  the  trustee  to  make  immediate  con- 
veyance or  transfer  to  her  of  the  trust  fund,  and  if  they 
refuse  they  are  liable  to  costs.'^  Even  if  the  gift  be  to  her 
husband  or  for  his  benefit,  the  trustee  must  transfer  and  give 
legal  effect  to  the  alienation,  as  in  other  instances  of  dis- 

1  Demarest  ;'.  Wynkoop,  3  Johns.  &  Wife,  §  249 ;  Dixon  v.  Dixon,  L.  R. 
Ch.    129  ;    Vartie    v.   Underwood,    18     9  Cii.  D.  587. 

Barb.   561;    Bartlett  v.  Bartlett,  4  Al-  6  Essex  r.  Atkins,  14  Ves.  552 ;  Cor- 

len,  440;  Short  v.  Battle,  52  Ala.  456;  gell  v.  Dunton,  7  Penn.  St.  532;  Jaques 

Young  V.  Graff,  28  111.20;   Watsons,  v.    Metliodist    Episcopal    Church,    17 

Thnrber,  11  Mich.  457;  Schoul.  Hus.  Johns.  548. 

&  Wife,  §  249.  "  Clerk    i'.  Laurie,  2  Hurl.  &  Nor. 

The  method  of  conveying  the  wife's  199  ;  Peachey  Mar.  Settl.  292;   Schoul. 

general  lands  under  our  modern  local  IIus.  &  Wife,   §  250 ;  Taylor  v.  Glan- 

statutes  is  shown  supra,  §§  94,  95.  ville,  3  Mad.  179;  Nortli  American  Coal 

2  Witsell  V.  Charleston,  7  S.  C.  88.  Co.   v.   Dyett,    7    Paige,    1;  Gibson  v. 

3  Gardner  v.  Gardner,  7  Paige,  Walker,  20  N.  Y.  476.  And  see  Lewis 
112.  V.  Harris,  4  Met.  (Ky.)  3-53.     But  see 

4  Stumpf  r.  Stumpf,  7Mo.  App.272;  Noyes  v.  Blakeman,  2  Seld.  567  ;  s.  c. 
Fargo  V.  Goodspced,  87  111.  290.  3  Sandf.  531,  as  to  the  effect  of  New 

5  O'Hara  v.  Alexander,  56  Miss.  316.  York  statute  relative  to  the  declaration 
For  English  rule  see  also  Schoul.  Hus.  of  trusts. 

201 


§  139  THE   DOMESTIC   RELATIONS.  [PAET    II. 

position  on  lier  part,  reserving,  of  course,  the  right  to  show 
bad  faith  or  undue  influence  affecting  the  validity  of  the 
transfer  or  conveyance,  and  so  defeating  it.^ 

But  if,  on  the  other  hand,  the  instrument  requires  the 
written  approval  of  the  trustee  expressed  in  a  certain  man- 
ner, tliat  requirement  must  be  complied  with  to  make  even 
the  joint  conveyance  of  husband  and  wife  effectual ;  ^  and  it 
is  incumbent  on  every  trustee  to  see  that  all  restrictions  on 
the  wife's  dominion  over  the  fund  are  duly  respected.^ 

§  139.  Whether  Wife  must  be  specially  restrained  under  the 
Trust.  —  In  absence  of  all  technical  clauses,  our  general  rule 
is  that  the  wife,  unless  specially  restrained  by  the  terms  of 
the  trust  under  which  she  acquired  her  equitable  separate 
property,  may  dispose  of  it  at  pleasure.  Jaques  v.  3IetJiodist 
Episcopal  Church  went  so  far  as  to  rule  that,  though  a  par- 
ticular mode  of  disposition  be  specifically  pointed  out  in  the 
instrument,  this  will  not  preclude  the  wife  from  adopting  any 
other  mode  of  disposition,  unless  she  has  been,  by  express 
language  of  the  trust,  specially  restrained  to  that  particular 
mode.^  In  this  latter  doctrine  Chancellor  Kent  (whose  judg- 
ment in  the  lower  court  had  been  reversed^)  did  not  concur, 
—  adopting  the  more  conservative  view  with  reference  to 
such  restrictions.  The  distinction  is  rather  a  nice  one,  and 
successive  American  decisions  in  other  States  have  generally 
sustained  the  Chancellor's  views,  which  seem  indeed  most 
consonant  to  reason  and  the  intent  of  such  trusts  ;  but  the 
cases  are,  on  the  whole,  conflicting,  and  not  very  conclusive.^ 

1  Essex  V.  Atkins,  14  Ves.  542  ;  Mar-  approved  on  appeal,  was,  tliat  if  a  wife 
rick  V.  Grice,  3  Nev.  52 ;  Standford  has  power  expressly  conferred  to  dis- 
V.  Marshall,  2  Atk.  69;  Knowles  v.  pose  by  deed  in  concurrence  with  her 
Knowles,  8G  111.  1.  husband,  or  by  will  without  it,  her  re- 

2  Gelston  f.  Frazier,  26  Md.  829.  ceipt  "alone"  to   be  a  sufficient   dis- 
8  Hopkins  v.  Myall,  2  R.  &  M.  86 ;     charge  as  to  rents,  issues,  and  profits ; 

McClintic  v.  Ochiltree,  4  W.  Va.  249.  the  wife  cannot  appoint  by  deed,  or 

See   Horner  v.   Wheelwright,   2   Jur.  charge  the  property  by  her  sole  bond, 

N.  s.  367.  note,  parol  promise,  &c. 

4  Jaques  v.  Methodist  Episcopal  Hoar,  J.,  in  Willard  v.  Eastham,  15 
Church,  17  Johns.  548  ;  Methodist  Gray,  328,  appears  to  have  misappre- 
Episcopal  Church  v.  Jaques,  1  Johns,  hended  this  point.  See  Schoul.  Hus. 
Ch.  450  ;  3  ib.  11.  &,  Wife,  §  251. 

5  3  Johns.  Ch.  77.  The  point  con-  ^  g^.,,  TuUett  v.  Armstrong,  1  Beav. 
tended  for  by  the  Chancellor,  but  dis-  1,  at  length,  for  the  English  doctrine. 

202 


CHAP,  X.]    DOMINION:    WIFE's  EQUITABLE  PROPERTY.      §  lil 

Both  English  and  American  precedents  agree  in  the  converse 
principle,  that  if,  by  the  terms  of  the  trust,  the  wife  is  expressly 
restrained  to  a  particular  mode  of  dealing  with  the  separate 
fund,  she  cannot,  even  by  proceedings  in  equity,  be  enabled 
to  pursue  any  other  inconsistent  mode.^ 

§  140.  Wife's  Participation  in  Breach  of  Trust  with  Husband 
or  Trustee.  —  The  separate  estate  of  married  women  ma}'  be 
affected,  and  their  rights  barred,  by  active  participation  in 
breaches  of  trust.^  But  on  the  other  hand,  to  preclude  the 
wife  from  the  right  to  relief  simply  because  she  has  improperly 
permitted  her  husband  to  receive  the  trust  funds,  would  be 
to  defeat  the  very  purpose  for  which  the  trust  was  created, 
—  namely,  the  protection  of  the  wife  against  her  husband. 
Hence,  according  to  the  latest  and  best  authorities,  the  court 
must  be  satisfied  that  the  liusband  has  not  in  any  degree 
influenced  her  acts  and  conduct,  before  it  holds  her  separate 
estate  to  be  affected ;  and  this,  upon  the  most  jealous  inves- 
tigation.^ 

Where  her  husband  and  the  trustee  of  the  fund,  by  way  of 
fraudulent  collusion  to  deprive  her  of  her  property,  make  an 
improper  transfer  thereof  out  of  her  separate  use,  her  assent 
will  not  be  readily  presumed  to  the  transaction  from  circum- 
stances, while  she  remained  in  ignorance  of  it.'* 

§  141.  Income  to  Husband;  One  Year's  Arrears.  —  By  the 
ordinary  rule  of  the  English  chancery  courts  a  wife  is  pre- 
cluded from  recovering  the  arrears  of  income  on  her  separate 
estate  for  more  than  a  year,  upon  the  ground  of  a  supposed 
gift  to  her  husband.^  As  to  whether  one  year's  income  can 
be  recovered  or  not  there  is  much  discrepancy  in  the  English 


For  American  authorities,  see  2  Kent.  Wells,  9  Hare,  773.  And  see  author- 
Corn.  165,  166,  and  cases  cited  in  last  ities  cited,  Schoul.  Hus.  &  Wife,  §  2-54; 
edition.  Also  Schoul.  Hus.  &  Wife,  Carpenter  v.  Carpenter,  27  N.  J.  Eq. 
§  252.  502 ;  Clive  v.  Carew,  1  John.  &  Hem. 

1  Ross  V.  Ewer,  2  Atk.  156;  Schoul.  199. 

Hus.  &  Wife,  §§  237,  238,  247,  252.  *  Dixon  v.  Dixon,  L.  R.  9  Ch.  D. 

2  Peachcy  Mar.  Settl.  276;    Ryder  587. 

V.  Bickerton,  3  Swanst.   80,  n.  ;  Lord  *  Peachey  Mar.  Settl.  291,  and  cases 

Montford   v.   Lord   Cadogan,    19   Ves.  cited ;    Rowley    v.    Unwin,    2    Kay   & 

635.  Johns.  142;    Arthur  v.  Arthur,  11  Ir. 

3  Per  Sir  George  Turner,  Hughes  v.  Ch.  513. 

203 


§  143  THE  DOMESTIC   RELATIONS.  [PART   II. 

cases ;  but  the  better  opinion,  even  here,  is,  that  the  husband 
has  been  allowed  by  the  wife  presumably  to  receive  and  ap- 
propriate her  income  from  year  to  year,  unless,  by  a  consistent 
course  of  dissent,  the  wife,  on  her  part,  rebuts  such  presump- 
tion, in  which  case  her  will  must  be  respected.  If  the  wife 
is  insane  and  incapable  of  assenting,  or  the  income  has  not 
actually  come  to  her  husband's  hands,  and  under  the  trust, 
moreover,  the  income  is  not  payable  to  the  husband,  the  in- 
come will  belong  to  her ;  though  here  the  inclination  of  equity 
is  to  allow  the  reasonable  offsets  to  the  husband.^ 


CHAPTER  XI. 

THE    wife's    dominion    OVER    HER    STATUTORY    SEPARATE 

PROPERTY. 

§  142.    Dominion  under  Married  "Women's  Acts  in  General.  — 

The  doctrine  of  the  wife's  dominion  over  her  se^jarate  estate 
is  at  this  day  more  generally  asserted,  in  the  United  States  at 
least,  with  reference  to  the  married  women's  acts  ;  and  some 
of  the  later  cases  show  important  variations  from  the  equity 
rule,  as  we  shall  proceed  to  notice.  The  decided  change 
seems  to  date,  in  American  chancery,  from  the  passage  of  the 
important  married  women's  acts,  or  about  1848,  and  in  most 
States  at  this  day  to  affect  equitable  remedies  with  reference 
to  both  the  statutory  and  equitable  separate  estate  of  the 
wife. 2 

§  143.  Nevj"  York  Rule  as  to  Wife's  Charge  not  Beneficial.  — 
The  obstinate  case  of  Yale  v.  Dederer  is  an  important  one,  as 
establishing  in  a  leading  American  State,  under  cover  of 
modern  legislative  policy,  a  new  doctrine,  at  variance  with 
that  of  English  equity  courts  noted  in  our  last  chapter,  and 
apparently  contrary  to  its  own  precedents.^  In  this  case  the 
New  York  statutes  of  1848  and  1849  were  to  be  construed, 

1  LewinTrusts,  550;  2  Perry  Trusts,  ^  Yale  v.  Dederer,  18  N.  Y.  265; 
§  665,  and  cases  cited.  8.  0.  22  N.  Y.  450. 

2  ISupra,  §  134. 

204 


CHAP.  XL]  DOMINION ;    WIFE'S  STATUTORY  PROPERTY.     §  143 

which  in  terms  permitted  the  wife  to  hold  to  separate  use, 
and  to  "  convey  and  devise  "  as  if  sole,  but  left  her  promis- 
sory note  as  void  as  it  always  had  been  at  the  common  law.^ 
A  question  properly  raised  was  whether,  notwithstanding  her 
legal  disabilities  to  contract  remained  substantially  as  before 
the  statute,  the  married  woman  might,  as  incidental  to  the 
complete  right  of  property  and  jus  disponendi  which  she  took 
under  the  statute,  charge  her  estate  for  the  purposes  and  to 
the  extent  which  rules  of  equity  had  heretofore  sanctioned 
with  reference  to  her  equitable  separate  estate.  The  de- 
cision was  adverse,  and  the  principle  of  the  decision  was 
this  :  that,  in  order  to  create  a  charge  upon  the  separate 
estate  of  a  married  woman,  the  intention  to  do  so  must  be 
declared  in  the  very  contract  which  is  the  foundation  of  the 
charge,  or  else  tlie  consideration  must  be  obtained  for  the 
direct  benefit  of  the  estate  itself.  Later  New  York  decisions 
follow  the  rule  of  this  case,  and  require  a  distinct  wiitten 
obligation  to  bind  the  wife  where  the  debt  is  not  contracted 
for  the  direct  benefit  of  the  estate.^ 


1  It  appeared  that  the  husband  had 
offered  his  promissory  note  to  the  plain- 
tilf  in  paj'inent  for  certain  cows  which 
he  wished  to  purchase  ;  that  the  plain- 
tiff, doubting  his  solvency,  required  him 
to  procure  his  wife  to  unite  in  a  note  with 
him.  Tills  he  did.  The  note  was  subse- 
quently renewed.  At  the  time  of  sign- 
ing the  note  Mrs.  Dedercr  remarked 
that  if  her  husband  was  not  able  to  pay 
it,  she  was.  Tiie  husband  turned  out 
insolvent  afterwards,  and  judgment  on 
the  note  was  returned  nnlla  bona  as 
against  him.  It  was  established  that 
the  wife  had  sufficient  real  estate,  held 
in  her  own  right,  to  satisfy  the  claim  ; 
and  the  judge,  wlio  heard  the  evidence, 
stated  in  his  finding  that  "the  defend- 
ant, Mrs.  Dederer,  intended  to  charge, 
and  did  expressly  charge,  her  separate 
estate  for  the  payment  of  the  note." 
The  Court  of  Appeals  nevertheless 
held  that  Mrs.  Dederer  was  a  mere 
surety  for  her  husband  ;  and  that  being 
such,  although  it  was  her  intention  to 
charge  her  separate  estate,  such  inten- 


tion did  not  take  effect.  We  may  add 
that  Yale  v.  Dederer  was  passed  upon 
by  the  New  York  Court  of  Appeals 
three  several  times.  After  the  first 
appeal,  18  N.  Y.  2G5,  the  court  below, 
which  would  at  first  have  entered 
judgment  to  sell,  found  that  the  wife 
actually  intended  to  charge  her  sepa- 
rate estate  with  the  promissory  note 
in  question.  Hence  the  principle  so 
broadly  asserted  as  to  evidence  in  writ- 
ing on  the  second  appeal  (22  N.  Y.  450)  ; 
Selden,  J ,  observing  that  hereafter 
married  women  were  not  to  be  in- 
debted to  equity  merely  for  protection 
in  their  separate  estate.  A  third  time 
(see  08  N.  Y.  329),  or  about  1877,  the 
case  went  up  on  appeal ;  the  effort 
upon  the  last  trial  being  made  to  take 
the  case  out  of  the  rule  b_y  evidence, 
but  it  was  held  that  the  findings  as  to 
the  circumstances  and  intent  were  not 
inconsistent  with  the  idea  that  the  de- 
fendant had  signed  as  surety. 

2  White  V.  McNett,  33  N.  Y.  371 ; 
Ledlie    v.   Vrooman,    41    Barb.    109 ; 

205 


§  143  THE  DOMESTIC    RELATIONS.  [PART   U. 

The  decision  in  Yale  v.  Dederer,  on  its  second  appeal,  made 
a  profound  impression  among  chancery  jurists,  the  novelty  of 
the  married  women's  act  favoring  this  result,  and  likewise 
the  circumstance  that  chancery  jurisdiction  had  hitherto  been 
taken  more  liberally  in  New  York  than  in  other  States  in  the 
Union.  Opinions  differed  as  to  the  merits  of  the  decision,  but 
not  as  to  the  boldness  of  the  innovation  upon  chancery  prece- 
dents. It  does  not  appear  that  this  doctrine  has  found  favor 
in  all  the  other  States.  In  Wisconsin,  the  decision  of  Yale  v. 
Dederer  was  unsparingly  condemned  soon  after,  in  the  course 
of  judicial  discussion.^  And  for  several  years  the  more  com- 
mon equitable  rule  in  this  countrj'  still  seemed  to  be  that  the 
wife's  separate  estate  would  be  held  liable  for  all  debts  which 
she  by  implication  or  expressl}^  by  writing  or  parol,  charged 
thereon,  even  if  not  contracted  directly  for  the  benefit  of  the 
estate.^  For  the  wife's  debts  are  charged  in  justice  upon  her 
separate  estate,  not  because  of  her  power  to  make  a  valid 
written  or  verbal  contract,  but  because  it  is  right  that  her 
debts  should  be  paid.^ 

But  influences  were  at  work  to  bring  other  jurisdictions  to 
reject  the  loose  discretionary  powers  which  English  precedents 
appeared  to  have  established  against,  as  well  as  favorably  to, 
the  interests  of  married  women.  In  jNIassachusetts,  at  a  term 
of  1860,  the  Supreme  Court,  called  for  the  first  time  to  ex- 
ercise full  equity  powers  under  a  statute  then  recent,  fol- 
lowed the  rule  of  Yale  v.  Dederer,  in  a  similar  case  of  married 
women's  suretyship.^  The  English  chancery  itself,  finding 
occasion  in  1861  to  consider  the  subject  of  separate  estate 

White   V.   Story,  43  Barb.    124;  Mer-  ?;.  Grumpier,  20  Tex.   374;  Phillips  v. 

chants'  Bank  v.  Scott,  50  Barb.  641.  Graves,  20  Ohio  St.  871 ;  Avery  v.  Van- 

1  Todd  V.  Lee,  15  Wis.  365.  sickle,  35  Ohio  St.  270. 

2  Pentz  V.  Simonson,  2  Beasl.  232 ;  s  Cummins  v.  Sharpe,  21  Ind.  3.31 ; 
Grapengether  v.  Fcjervary,  9  Iowa,  Pentz  v.  Simonson,  2  Beasl.  2.32  ;  Glass 
163;  Rogers  v.  Ward,  8  Allen,  387;  r.  Warwick.  40  Penn.  St.  140.  But  see 
Mayo  V.  Hutchinson,  57  Me.  546;  Ma-  Maclay  v.  Love,  25  Cal.  367  ;  Hanly  v. 
jor  V.  Symmes,  19  Ind.  117;  Oakley  v.  Downing,  4  Met.  (Ky.)  95. 

Pound,  "l  McCart.  178;  ISIiller  v.  New-  *  Willard  v.  Eastham,  15  Gray,  328. 

ton,  23  Cal.   554  ;  2  Kent  Com.   164 ;  The  volume  of  Reports  containing  this 

2  Story  Eq.  Juris.  §§  1398,  1401,     See  opinion   was  not,  however,  published 

Koontz  V.  Nabb,  16  Md.  549 ;  Knox  v.  before  1869. 
Jordan,  5  Jones  Eq.  175 j  McFaddin 

206 


CHAP.  Xr.]  DOMIXION:    WIFE's  STATUTORY  PEOPERTY.     §  144 

liability  for  a  wife's  unbeneficial  dealings,^  showed  a  new 
inclination  to  discriminate  for  the  protection  of  a  wife's  sepa- 
rate estate  in  such  instances.  On  the  whole,  therefore,  while 
the  lines  of  American  and  English  decisions  of  late  do  not 
run  parallel,  and  States  themselves  are  discordant  as  to 
burden  of  proof  and  as  to  admitting  or  denying  the  New 
York  and  Massachusetts  doctrine,  —  some  States  holding  it 
immaterial  in  equity  whether  the  wife's  debt  be  evidenced  by 
a  written  instrument  or  parol  promise,^  —  the  tendency  on 
both  sides  of  the  water  is  towards  the  conclusion  that  the 
debts  of  a  married  woman  having  separate  property  are  only 
to  be  surely  charged  by  a  court  of  equity  upon  that  separate 
property,  and  payment  enforced  out  of  it,  when  it  was  con- 
tracted by  her  for  its  benefit,  or  expressly  made  a  charge 
thereon  or  expressly  contracted  on  its  credit;^  and,  of 
course,  to  the  extent  only  to  which  the  wife's  power  of  dis- 
posal may  go.'* 

§  144.  Combined  Tests  ;  Benefit  and  Express  Intention.  — 
The  equitable  rule  in  which  American  cases,  together  with 
the  latest  English  cases,^  generally  agree,  whether  with  refer- 
ence to  the  equitable  or  statutory  separate  property  of  the 
wife,  is,  that  the  separate  estate  of  a  married  woman  becomes 

1  That  is,  for  buying  stock  in  trade  Elliott,  7  C.  E.  Green,  127  ;  Maguire 
for  her  separate  business.  This  case  v.  Maguire,  3  Mo.  App.  458  ;  Hodson 
was  Jolinson  v.  Gallagher,  3  De  G.  F.     v.  Davis,  43  Ind.   258  ;    Chatterton  v. 

6  J.  494  ;  supra,  §  135.  Young,   2    Tenn.    Ch.    768 ,  Nelson   v. 

2  Miller  v.  Brown,  47  Mo.  505.  Miller,  52  Miss.  410.     But  other  cases 
8  See  supra,  §  135 ;    Armstrong   v.     are    to    the    contrary.      Metropolitan 

Koss,  5  C.  E.  Green,  109;  Kantrowitz  Bank  v.  Taylor,  62  Mo.  338;  Mayo  v. 

V.  Prather,  31  Ind.  92 ;    Hasheagan  v.  Hutchinson,  57  Me.  546  ;  supra,  p.  206. 

Specker,  36  Ind.  413  ;  Perkins  v.  Elliott,  The  rule  is  regarded  as  settled  in  New 

7  C.  E.  Green,  127  ;  Patrick  v.  Littell,  York,  that,  in  order  to  charge  the  estate 
36  Ohio  St.  79,  and  authorities  cited ;  of  a  married  woman  with  a  debt  not 
Westgate  v.  Munroe,  100  Mass.  227 ;  contracted  for  the  benefit  of  her  sepa- 
Nash  V.  Mitchell,  71  N.  Y.  199  ;  Wilson  rate  estate,  the  intent  to  charge  such 
V.  Jones,  46  Md.  349  ,  Wallace  v.  Fin-  estate,  where  the  obligation  is  in  writ- 
berg,  46  Tex.  35 ;  Williams  r.  Hugunin,  ing,  must  be  expressed  in  the  instru- 
69  111.  214  ;  Stilwell  v.  Adams,  29  Ark.  ment.  Yale  v.  Dederer,  68  N.  Y.  329. 
346 ;  Pippen  v.  Wesson,  74  N.  C.  437.  *  See   Hix   v.  Gosling,  1  Lea,   560. 

The   doctrine   of  Yale   v.  Dederer,  For  numerous  applications  of  this  new 

whether  by  statute  or  judicial  decision,  rule,  see  Schoul.  Hus   &  Wife,  §  258, 

finds  more  direct  support  from  Cozzens  and  cases  cited. 

V.  Whitney,  3  R.  I.  79  ;  Jones  v.  Cros-  5  Supra,  §  135. 
thwaite,    17    Iowa,    393 ;    Perkins    v. 

207 


§  145  THE   DOMESTIC   RELATIONS.  [PAllT   II. 

chargeable  with  the  due  performance  of  her  engagements  or 
obligations  made  or  incurred  upon  its  express  credit  or  for  its 
benefit. 1  Benefit  is  not  the  sole  test ;  but,  to  the  extent  of 
her  power  of  disposition  over  her  separate  estate,  the  wife 
may  charge  it  with  such  engagements  as  she  sees  fit  to  make, 
provided  the  evidence  of  intention  be  satisfactory  (upon 
which  point  States  differ),  and  provided,  of  course,  that  the 
transaction  was  voluntary  on  her  part,  and  not  fraudulently 
procured. 

In  order  to  charge  the  separate  estate  of  a  married  woman 
with  a  debt,  as  the  cases  now  to  be  examined  will  show,  a 
specific  agreement  to  that  effect  is  not  indispensable  ;  but  the 
intent,  or  tlie  creditor's  right  to  procure  sucli  charge,  may  be 
inferred  from  the  surrounding  circumstances.^ 

§  145.  Whether  Wife  may  Bind  as  Surety  or  Guarantor.  — • 
Where  a  married  woman  having  separate  estate  executes  a 
promissory  note  as  surety  for  another,  such  estate  is  presum- 
ably charged  with  its  payment  in  Ohio,  Maine,  Missouri, 
and  some  other  States.  But  the  rule,  as  we  have  seen,  is 
(or  was  lately)  otherwise  in  New  York,  and  JNIassachusetts, 
and  New  Jersey,  and  the  same  may  be  said  as  to  Georgia, 
Tennessee,  Nebraska,  and  other  States.  In  Louisiana  a  mar- 
ried woman  may  bind  herself  as  surety  for  any  one  except 
her  husband. 3 

A  married  woman's  promissory  note  does  not,  as  a  rule, 
secure  her  husband's  debts,  nor  does  she,  by  executing  it, 
bind  herself  lawfully  as  his  surety  or  guarantor  on  a  contract 
not  relating  to  her  separate  estate,  nor  for  its  benefit,  so  as  to 
render  herself  liable  to  suit.'*  The  same  may  be  said,  though 
perhaps  with  more  reserve,  of  her  undertakings  for  the  bene- 
fit of  third  parties  ;  as  a  mere  accommodation  indorser,  for 
instance.^     The  tendency  of  some  of  the  late  cases  is  to  ex- 

1  Patrick  v.  Littell,  36  Ohio  St.  79.       numerous  cases  cited  in  Schoul.  Hus.  & 

2  Conlin  v.  Cantrell,  64  N.  Y.  217;     Wife,  §  260. 

Harsliberijer  v.  Alger,  31  Gratt.  52.  5  Shannon  v.  Canney,  44  N.  H.  592; 

'  SchouL  Hus.  and  Wife,  §  260,  and  Crane  r.  Keiiey,  7  Allen,  250  ;  Koiin  v. 

cases  cited.  Russell,  91  111.  138 ;  Bailey  v.  Pearson, 

4  Parker  r.  Simonds.  1  Allen,  258 ;  9  Post.  77  ;  Lytle's  Appeal,  36   Penn. 

Shannon  v.  Canney,  44  N.  H.  692,  and  St.   131 ;  Peake   v.  La  Baw,  6  C.  E. 

Green,  269  ;  Bauer  v.  Bauer,  40  Mo,  61. 
208 


CHAP.  XI.]  DOMINION:    WIFE'S  STATUTORY  PEOPERTY.     §  146 

empt  promissory  notes  which  are  drawn  jjaj-able  to  a  married 
woman  or  order  from  all  liability  for  the  husband's  engage- 
ments ;  a  presumption  being  thus  afforded  that  the  money  is 
due  to  her  and  not  to  her  husband.^ 

§  146.  Inquiry  into  Consideration  Pertinent ;  Promissory  Note, 
Bond,  &o. —  Inquiry  into  consideration  is  always  pertinent 
under  the  equity  rule,  and  in  States  where  tlie  wife  is  not 
invested  with  plenary  power  of  legal  disposition  under  ap- 
propriate statutes.  This  applies  to  the  wife's  promissory 
note,  which,  as  the  law  stands,  apart  from  statute,  cannot  be 
a  safe  investment  for  any  one  ;  for  its  value  consists  in  the 
proof  that  it  was  a  contract  on  her  part,  and  a  binding  con- 
tract, relative  to  her  separate  property,  within  the  general 
rule.  Even  in  Massachusetts,  where  the  wife's  mortgage 
on  real  estate  duly  executed  is  upheld,  a  note  secured  by  it, 


1  See  Cowlcs  v.  Morgan,  34  Ala. 
535;  Lewis  v.  Harris,  4  Met.  (Ky.)  353; 
Chapman  v.  Williams,  13  Gray,  416; 
Paine  v.  Hunt,  40  Barb.  7i>;  Tooke  v. 
Newman,  75  111.  215.  Since  the  second 
decision  in  Yale  v.  Dederer,  the  New 
York  statute  of  1860  provides  that  any 
married  woman  possessed  of  real  estate 
as  her  separate  property  may  bargain, 
sell,  and  convey  such  property,  and 
"enter  into  any  contract"  in  reference 
to  the  same.  By  way  of  construing 
this  statute,  together  with  the  prior 
acts  of  1848  and  1849,  the  New  York 
Court  of  Appeals  has  charged  a  mar- 
ried woman  as  party  without  consider- 
ation to  a  promissory  note,  where  she 
added,  as  promisor  or  special  indorser, 
express  words  charging  the  payment 
of  the  note  on  her  separate  property. 
Corn  Exchange  Ins.  Co.  v.  Babcock, 
42  N.  Y.  613.  She  may  therefore  now 
become  a  surety  or  guarantor,  by  force 
of  statute,  not  only  in  New  York  but 
in  some  other  States,  though  the  stat- 
ute of  frauds  must  apply  to  her  oral 
promise  to  be  liable  for  another.  Wool- 
sey  V.  Brown,  74  N.  Y.  82;  Hart  v. 
Grigsby,  14  Bush,  542 :  Northwestern 
Life  Ins.  Co.  v.  Allis,  23  Miim.  337. 

In  New  Jersey,  on  the  other  hand, 
14 


where  no  such  power  was  given  under 
statute  for  the  married  woman  to  dis- 
pose of  her  separate  property  as  has 
been  conferred  by  the  New  York  legis- 
lature, equity  has  refused  to  recognize 
any  power  in  a  married  woman,  inde- 
pendently of  appropriate  legislation,  to 
charge  her  separate  statutory  estate 
by  any  writing,  even  though  it  contain 
words  which  show  a  clear  intention  to 
bind  such  estate,  except  by  a  mortgage 
acknowledged  as  required  by  law,  or 
for  debts  contracted  for  the  benefit  of 
her  separate  estate,  or  for  her  own 
benefit  on  the  credit  of  it ;  and  hence 
it  declines  to  impose  a  lien  on  the 
wife's  separate  estate  because  of  her 
note  as  surety,  even  though  by  ex- 
press words  she  charges  the  payment 
of  that  note  on  her  separate  property. 
Perkins  v.  Elliott,  7  C.  E.  Green,  127 ; 
Kohn  V.  Russell,  91  111.  138 ;  Dunbar  v. 
Mize,  53  Ga.  435.  In  other  States  the 
wife's  capacity  to  make  a  contract  of 
suretyship  or  guaranty  is  still  denied. 
Russel  V.  People's  Savings  Bank,  39 
Mich.  671.  And  quite  generally  her 
simple  indorsement  of  a  bill  or  note  is 
held  to  be  inoperative  beyond  divest- 
ing her  of  a  title  therein.  Moreau  v. 
Branson,  37  Ind.  195. 

209 


§  1-17  THE   DOMESTIC   KELATIONS.  [PART   11. 

if  for  unbeneficial  consideration,  such  as  the  husband's  in- 
debtedness, could  not  be  enforced.^  But  the  Latest  legislation 
in  Massachusetts  does  not  require  the  consideration  of  a 
wife's  contract  to  enure  to  her  own  benefit,  and  her  joint 
note  with  her  husband,  or  her  indorsement,  binds  her  to 
quite  or  nearly  the  same  extent  as  that  of  any  single 
woman.^ 

But  whether  by  promissory  note,  bond,  oral  or  written 
promise,  the  instrument  and  the  proof,  taken  together,  must 
disclose  the  intention  ^  to  charge  her  separate  estate  expressly, 
or  else  some  beneficial  object  for  which  the  money  was  raised. 
If  a  loan  is  made  to  the  wife,  the  purpose  of  that  loan  must 
be  established  by  the  lender  as  the  test  of  his  right  to  re- 
cover.* So,  too,  if  she  gives  a  bond,  Avhether  as  surety  or 
otherwise,^  or  signs  or  indorses  a  promissorji-  note.^  And  in 
some  States,  even  in  equity,  as  to  her  properly  executed  con- 
veyance of  real  estate.'^  But,  on  the  other  hand,  the  general 
property  rights  of  married  women  being  now  recognized  by 
sundry  statutes,  their  right  in  equity  to  make  contracts  affect- 
ing their  property  is  no  longer  limited  to  property  settled 
foi'mally  to  a  sole  and  separate  use  ;  and  although  in  numer- 
ous instances  statutory  requisites  for  making  the  contract 
binding  in  law  may  be  wanting,  equity  will  bind  her  prop- 
erty, nevertheless,  where  she  or  her  estate  has  received  the 
benefit  of  the  transaction.^  We  speak  here  with  a  constant 
reservation  oifeme  sole  liabilities  acquired  under  local  statutes 
which  may  affect  all  such  issues.^ 

§  147.  Equity  charges  Engagement  on  General  as  well  as 
Specific  Property.  —  Equity  will  charge  a  debt,  and  even  one 

1  Heburn  v.  Warner,  112  Mass.  271.         *  Way  v.  Peck,  47  Conn.  23;  Viser 

And  see  Wright  v.  Dresser,  110  Mass.  v.  Scruggs,  49  Miss.  705. 
51.  5  Gosraan  v.  Cruger,  69  N.  Y.  87. 

~  Major  V.  Holmes,  124  Mass.  108 ;  ^  Cases  supra ;  Flanders  o.  Abbey, 

Kenwortby  v.  Sawyer,  125  Mass.  28;  6  Bis.  16;  Conrad  v.  Le  Blanc,  29  La. 

Goodnow  V.  Hill,  125  Mass.  587.  Ann.  123. 

3  The  presumption  is  that  a  contract  ^  Sutton  v.  Aiken,  62  Ga.  733. 

entered  into  by  a  married  woman  hav-  ^  Donovan's  Appeal,  41  Conn.  551. 

ing  a  separate  estate,  for  its  benefit  or  ^  As  to  evidence  in  such  cases,  see 

for   her   exclusive   benefit,    was    con-  Schoul.  Has.  &  Wife,  §  262. 
tracted  upon  the  credit  of  her  estate. 
Williams  v.  King,  43  Conn.  569. 

210 


CHAP.  XI.]  DOMINION:    WIFE's  STATUTORY  PROPERTY.     §  148 

with  mortgage  or  other  collateral  security  upon  specific  prop- 
erty, upon  the  wife's  separate  property  generally,  so  long  as 
the  debt  was  contracted  for  the  benefit  of  the  wife's  separate 
property.^  At  law,  of  course,  there  may  be  no  such  remedy ; 
and  yet  it  should  be  borne  in  mind  that  local  legislation  fre- 
quently extends  the  legal  rights  of  a  married  woman  in  this 
same  direction. 

§  148.  Married  Woman's  Executory  Promise ;  Purchase  on 
Credit.  —  In  oreneral  it  is  held  that  a  married  woman  cannot 
become  personally  liable  on  her  general  or  executory  promise 
except  it  concern  expressly,  under  general  rules,  her  benefit 
or  her  separate  estate.  Hence  a  note  given  by  her  upon  an}^ 
other  consideration  is  void,^  even  though  it  be  in  the  hands 
of  a  bona  fide  holder.^  The  wife's  bond  for  payment  of  money 
does  not  bind  her  personally.'*  The  wife  cannot  become  a 
general  borrower,  even  though  she  give  a  promissory  note  or 
security  in  the  same  connection.^  Her  general  engage- 
ments, in  a  word,  without  the  scope  of  the  general  rules  we 
have  stated,  will  create  no  charge  upon  her  separate  property 
enforceable  in  equity.^  Some  States,  however,  under  their 
liberal  enabling  acts,  repudiate  such  restrictions  upon  the  jus 
disponendi? 

There  is  some  difficulty  in  the  purchase,  by  a  married 
woman,  of  property,  whether  real  or  personal,  on  credit, 
arising  out  of  the  circumstance  that  she  cannot  make  a  con- 
tract for  payment  which  will  be  personally  binding.^     There 


1  Armstrong  v.  Ross,  5  C.  E.  Green,  ^  See  Allen  v.  Fuller,  118  Mass.  402  ; 
109.  Knapp  v.  Smith,  27  N.  Y.  277. 

2  Kenton  Ins.  Co.  v.  McClellan,  43  3  Jn  New  Hampshire  it  was  held 
Mich.  564  ;  Pippen  v.  Wesson,  74  N.  C.  that  a  married  woman  could  not,  under 
437 ;  Stokes  v.  Shannon,  55  Miss.  583.  the  statutes  as  tliey  stood  a  few  years 

3  Kenton  Ins.  Co.  v.  McClellan,  43  ago,  make  a  contract  for  money  or 
Midi.  504.  property   in   anticipation   of   the   pur- 

«  Huntley  v.  Whitner,  77  N.  C.  392.  chase  of  separate  estate  ;  and  hence 
3  O'Daily  v.  Morris,  31  Ind.  Ill ;  tliat  her  note  given  for  money  bor- 
Way  V.  Peck,  47  Conn.  23  ;  Viser  i-.  rowed,  wherewith  to  make  such  pur- 
Scruggs,  49  Miss.  705.  chase,  was  void.  Ames  v.  Foster,  42 
6  Williams  v.  Hugunin,  69  111.  214;  N.  H.  381.  But  see  later  statutes  of 
supra,  §  144 :  Huyler  v.  Atwood,  26  N.  this  State.  Batchelder  v.  Sargent,  47 
J.  Eq.  504 ;  Stillwell  v.  Adams,  29  Ark.  N.  H.  262 ;  Blake  v.  Hall,  57  N.  H. 
346.  382.     See  also   Thompson  v.  Waller, 

211 


§  149  THE   DOMESTIC   RELATIONS.  [PART   II. 

is  mucli  logical  confusion  on  this  point ;  and  the  true  equitj^ 
rule  appears  to  be  to  regard  not  so  much  the  credit  as  the 
consideration  of  that  credit,  whether  it  were  for  her  benefit 
or  on  express  credit  of  the  separate  property.  Where  the 
wife  cannot  be  sued  upon  her  promise  to  buy  upon  credit, 
she  will  not  in  equity  be  allowed  to  decline  and  yet  keep  the 
property  too  ;  and  hence  lands  or  personal  property  sold  her 
on  her  credit,  and  for  the  benefit  of  her  separate  estate,  have 
been  treated  as  subject  to  the  vendor's  lien,  even  though  the 
notes  she  gave  by  way  of  executory  contract  could  not,  as 
such,  be  enforced  against  her.^  And,  once  again,  it  is 
asserted,  and  quite  fairly,  that  the  sale  to  a  married  woman 
on  credit  is  a  voidable  contract  on  her  part ;  that  she  may 
either  recede  from  the  bargain  and  claim  its  annulment,  or 
allow  it  to  stand  with  a  right  in  the  vendor  to  subject  the 
specific  property  to  tlie  payment  of  the  debt.^ 

§  149.  Married  "Woman's  Ov^nership  of  Stock ;  Employment 
of  Counsel.  —  Transfers  of  a  married  woman's  stock  in  a  cor- 
poration require,  under  some  statutes,  the  husband's  written 
assent  or  joinder ;  under  others,  again,  she  may  convey  as  if 
sole.  After  her  transfer  without  observance  of  such  require- 
ments, she  may,  upon  information  of  her  legal  rights,  obtain 
a  retransfer  in  equity,  notwithstanding  subsequent  purchasers 
have  intervened.'^ 

85  111.  197.     But  on  the  other  hand,  the  penter  v.  Mitchell,  54  111.  126  ;  Hunter 

New   York    doctrine   is  that  she  ma)^  v.  Duvall,  4  Bush,  438 ;  Smith  v.  Doe, 

purchase  property  on  credit;  and  if  the  56  Ala.  45G  ;  Boland  i-.  Klink,  G3  Ga. 

vendor  will  run  the  risk  of  being  able  447. 

to  obtain  payment  of  the  consideration  ^  Nicholson  v.  Ileiderhoff,  50  Miss, 

of  the  sale,  the  transfer  remains  valid,  56.     See  further,  Schoul.  Hus.  &  Wife, 

and  no  estate  will  pass  to  the  husband,  §  264. 

whether  the  wife  had  previously  any  The  current  of  negative  authority 
separate  estate  or  not.  Darby  v.  Calli-  on  this  point  turns  much  towards  the 
gan,  16N.  Y.  21;  Knapp  v.  Smith,  27  purchase  of  real  estate  by  the  wife; 
N.  Y.  277.  So  in  other  States.  Ciiap-  and,  upon  what  ought  to  be  deemed 
man  v.  Foster,  6  Allen,  136  ;  Shields  v.  more  fundamental  reasons  than  those 
Keys,  24  Iowa,  298.  And  her  separate  of  cash  or  credit,  it  is  held  that  a  mar- 
estate  is  in  fact  charged,  under  suit-  ried  woman  is  incapable  of  acquiring 
able  circumstances,  by  her  purchase  real  property  to  her  separate  use  under 
on  credit,  as  we  have  already  seen,  such  circumstances.  This,  however, 
Siiprn,  §  145.  is  by  no    means    a    uniform   doctrine. 

1   Pemberton    v.   Johnson,   46    Mo.  Schoul.  Hus.  &  Wife,  §  265. 
342;  Bruner  v.  Wheaton,  ib.  363;  Car-         ^  Merriam  v.  Boston  R.,  117  Mass. 

212 


CHAP.  XI.]  DOMINION:    WIFE's  STATUTORY  PROPERTY.     §  150 

In  Rhode  Island  it  is  held  that  compensation  of  the 
wife's  solicitor  for  prosecuting  a  suit  in  equity  regarding  her 
separate  leaseholds  caunot  be  recovered  from  her  separate 
estate.^  As  to  legal  fees  for  the  wife's  divorce,  some 
States  still  disincline  to  charge  her  estate,  in  absence,  at  all 
events,  of  an  express  undertaking  on  her  part  to  that  effect.^ 
But  in  New  York,  professional  services  rendered  a  married 
woman,  as  in  collecting  demands  arising  out  of  transactions 
permitted  her  by  the  statute,  are  recoverable  under  the  gen- 
eral rule  against  her  separate  estate,  as  rendered  by  her  pro- 
curement on  its  credit  and  for  its  benefit.^  Contracts  by  the 
wife  for  employing  counsel  in  her  property  suits  are  in  other 
States  sustained  more  or  less  liberally,  as  in  Indiana*  and 
Mississippi.^ 

§  150.  Joinder  of  Husband ;  Wife's  Conveyances  and  Con- 
tracts.—  The  rule  in  many  States,  under  the  married  women's 
acts,  is  that  the  husband  must  join  the  wife  in  contracts  and 
conveyances  relating  to  her  separate  property.  Particularly 
is  this  true  of  transactions  concerning  the  wife's  real  estate, 
upon  which  topic  we  have  already  spoken.^  Contracts  and 
conveyances  otherwise  made  are  not  considered  binding.'' 
The  language  of  the  married  women's  acts  in  many  States 
authorizes  the  inference  that  nothing  further  than  tlie  written 
concurrence  of  the  husband  is  requisite  to  complete  the  valid- 
ity of  the  wife's  transfer  of  separate  personal  property  ;  the 
voluntary  conveyance  of  the  wife  with  her  husband  passes 
her  separate  estate,  real  or  personal ;  nor  is  the  husband's 
joinder  always  essential  to  her  transfer  of  personal  property.^ 
And  in  some  States  the  wife's  sole  deed  of  her  separate  real 
estate  is  sufficient  to  pass  her  entire  interest ;  ^  though,  so 

241.   See,  further,  Schoul.  Hus.  feWife,  Major  v.  S.ymmes,  19  Ind.  117  ;  Miller 

§  268.  „.  Hine,  is'ohio  St.  565  ;  Schoul.  Hus. 

1  Cozzens  v.  Whitney,  3  R.  I.  79.  &  Wife,  §  269,  and  cases  citetl. 

2  Pfirsliing  V.  Falsh,  87  111.  260.  8  Trader  i-.  Lowe,  45  Md.  1. 

3  Owen  V.  Cawley,  36  N.  Y.  600.  9  Springer  v.  Berry,   47   Me.    330 ; 

4  Major  V.  Synimes,  19  Ind.  117.  Farr  v.  Sherman,  11  Mich.  33;  Hale  v. 
6  Porter  v.  Haley,  55  Miss.  6Q.  Christy,  8  Neb.  264;  Libby  v.  Chase, 
6  S'ipm,  §  133.  117  Mass.  105  ;  Beal  v.  Warren,  2  Gray, 
^  Wright   V.   Brown,  44   Penn.    St.  447. 

224  ;  Pentz  v.  Simonson,  2  Beasl.  232  ; 

213 


§  150  THE   DOMESTIC   RELATIONS.  [PAET  II. 

antagonistic  is  this  to  the  old  common  law,  that  a  clearly 
enabling  statute  should  be  required. ^ 

Following  the  spirit  of  recent  legislation,  some  American 
courts  now  hold  the  wife  liable  on  her  covenants  contained 
in  a  conveyance  of  her  separate  lands  ;^  or  her  agreement  to 
assume  a  mortgage  when  taking  a  conveyance  of  lands  so 
encumbered.'^  So  specific  performance  is  decreed  against  her 
on  her  written  promise  to  convey  ;  provided  the  contract  be 
executed  with  the  formalities  requisite  in  her  conveyance.* 
And  equity  will  not  permit  the  wife  to  avoid  a  sale  without 
refunding  the  purchase-money.^  Under  late  Massachusetts 
statutes,  moreover,  a  married  woman  may  bind  herself  by  her 
separate  contract  for  the  purchase  of  real  estate.^  In  other 
States  her  ratification  of  a  defective  conveyance,  whether 
directly  or  by  acts  presumptive,  is  pronounced  valid.'^  All  this, 
of  course,  is  contrary  to  the  old  rule,  which  in  many  parts  of 
the  United  States  still  obtains  to  a  greater  or  less  degree.^ 

A  wife  who  joins  suitably  with  her  husband  or  trustee  in 
a  conveyance  of  her  separate  or  general  property,  so  as  legally 
to  convey  it  in  conformity  with  statute,  cannot  afterwards 
assert  her  equitable  title  so  as  to  avoid  altogether  or  change 
from  an  absolute  to  a  security  title,  as  against  a  bona  fide 
purchaser  for  value,  having  no  notice  of  her  equitable  claim  ;^ 
nor,  according  to  the  growing  opinion,  assert  a  present  or  sub- 
sequent title  after  duly  conveying  her  entire  interest.!*^  The 
recitals  of  her  acknowledgment  in  the  magistrate's  certificate 
may  be  relied  upon  by  a  bona  fide  purchaser  or  mortgagee.!^ 

1  See  further,  Schoul.  Hus.  &  Wife,  ^  Faucett  v.  Currier,  109  Mass.  79. 
R  269.  For  the  New  Jersey  rule,  see  Pierson 

2  Basford  v.  Peirson,  7  Allen,  524;     v.  Lum,  25  X.  J.  Eq.  390. 

Gunter  v.  Williams,  40  Ala.  561 ;  Rich-  •   Spafford  v.  Warren,  47  Iowa,  47. 

mond  V.  Tibbies,  26  Iowa,  474.  8  Botsford  y. Wilson,  75  111.  133  ;  Stid- 

3  Huyler  v.  Atwood,  26  N.  .J.  Eq.  504.  ham  v.  Matthews,  29  Ark  650 ;  supra,  c. 
And  see'  Fenton  ;;.  Lord,  128  Mass.  466  ;  6 ;  Gore  v.  Carl,  47  Conn.  291. 
Coolidge  I'.  Smith,  129  Mass.  5-54.  »  Pepper   v.    Smith,  54   Tex.    115; 

4  Woodward  r.  Seaver,  38  N.  H.  29;  Davidson  v.  Lanier,  51  Ala.  318;  Co- 
Baker  V.  Hathaway,  5  Allen,  103.     See  megys  v.  Clarke,  44  Md.  108. 
Rumfelt  V.  Clemens,  46  Penn.  St.  455;         ^'>  Knight  v.  Thayer,  125  Mass.  25; 
Stevens  i-.  Parish,  29  Ind.  260;  Love  ;;.  King  v.  Rea,  56  Ind.  1.     But  see  Bar- 
Watkins,  40  Cal.  547.  ker  v.  Circle,  60  Mo.  2-58. 

6  KoUs  V.  De  Lever,  41  Barb.  208.  "  Singer  Man.  Co.  v.  Rook,  84  Penn. 

214 


CHAP.  XI.]  DOMINION:    WIFE's  STATUTORY  PROPERTY.     §  151 

Under  some  married  women's  acts  a  lease  to  her,  and  its 
covenants,  as  for  rent  or  taxes,  are  held  binding  upon  the  wife  ;  ^ 
and  so,  too,  a  lease  from  her.^ 

§  151.  Improvements,  Repairs,  &c.,  on  "Wife's  Lands;  Mechan- 
ics' Liens.  —  Upon  the  ground  that  the  wife's  separate  estate 
should  be  bound  by  contracts  for  its  benefit,  or  upon  its  ex- 
press credit,  her  debts  for  improvements  upon  lands  con- 
veyed to  her  sole  and  separate  use  have  been  enforced  in 
several  late  instances.^  So,  too,  the  joint  contract  or  joint 
note  of  herself  and  husband,  or  in  some  States  her  sole  note 
or  sole  contract,  for  lumber  and  materials  to  be  used  thereon. 
It  is  the  declared  rule  of  many  States  that  the  husband 
cannot  of  his  own  act,  and  without  his  wife's  consent,  sub- 
ject the  latter's  separate  land  to  debts  for  improvements,  or 
subject  it  to  a  mechanic's  lien.'*  But  the  mechanic's  stat- 
utory right  of  lien  generally  extends  to  a  married  woman's 
lands  where  she  contracted  in  person  or  by  agent,  and  per- 
haps, too,  where  the  contract  was  for  the  benefit  of  the  land.^ 
A  husband's  bona  fide  investment  of  money  in  improvements 
upon  his  wife's  estate  cannot  be  subjected  to  satisfaction  of 
the  claims  of  his  creditors. 

Apart  from  permanent  improvements,  a  married  woman's 
real  estate  may  well  be  rendered  liable  for  repairs  made  to 
her  separate  estate  at  her  own  request,  and  as  necessary  for 
its  due  preservation  and  enjoyment. 

Independently,  however,  of  enabling  statutes,  the  written 
contract  of  a  married  woman,  by  which  she  acknowledges  an 
indebtedness  for  materials  and  labor  used  to  improve  her 
separate  estate,  is  void  at  law.^ 

St.  442  ;  Marston  v.  Brittenham,  76  111.  Fowler  v.  Seaman,  40  N.  Y.  592 ;  Car- 

611;    Conn.   Life   Ins.  Co.  v.    McCor-  penter  y.  Leonard,  5  Minn.  155;  Schoul, 

mick,  45  Cat  580 ;  HomcEopathic  Life  Hus.  &  Wife,  §  272. 
Ins.  Co.  V.  Marshall,  .'32  N.  J.  Eq.  103.  *  Brians  v.  Titus,  7  R.  L  441 ;  Spin- 

1  Wortliingtonr.Cooke,  52Md.2n7;  ning  v.  Blackburn,  13  Ohio  St.  131; 
Harris  v.  Williams,  44  Tex.  124 ;  Albin  Schoul.  Hus.  &  Wife,  §  272. 

V.  Lord,  39  N.  H.  196.  5  Vail  v.  Meyer,  71  Ind.  159  ;  Wood- 

2  Schoul.  Hus.  &  Wife,  §  271,  and  ward  v.  Wilson,  68  Penn,  St.  208  ;  An- 
cases  cited  ;  Child  v.  Sampson,  117  derson  v.  Armstead,  69  111.  452 ;  Marsh 
Mass.  62;  Douglass  v.  Fulda,  50  Cal.  v.  Alford,  5  Bush,  892;  Schoul.  Hus.  & 
77.  Wife,  §  272,  and  cases  cited. 

3  Conway  v.   Smith,  13  Wis.  125 ;         e  Williams  v.  Wilbur,  67  Ind.  42. 

215 


§  153  THE   DOMESTIC   KELATIONS.  [PART   II. 

§  152.  Mortgage  of  Wife's  Lands.  —  The  husband  cannot 
mortgage  his  wife's  separate  property  for  his  individual  debt ;  ^ 
for  it  is  a  general  principle  that  the  wife's  separate  property 
cannot  be  made  liable  for  the  debts  of  her  husband  or  others 
without  her  assent.^  But  a  mortgage  given  by  a  married 
woman  upon  her  separate  estate,  acknowledged  in  conformity 
with  the  statute,  and  with  the  joinder  of  the  husband,  is  a 
valid  security  and  capable  of  enforcement;  not  alone  where 
she  had  it  mortgaged  to  secure  her  own  or  her  husband's 
debt,  but  also,  in  a  case  free  from  fraud  or  undue  influence, 
where  it  was  mortgaged  for  the  benefit  of  a  third  person.^ 

But  in  all  such  cases  the  wife's  rights  as  surety  are  care- 
fully guarded  ;  and  the  husband  cannot  pervert  the  security 
to  her  detriment,  nor  bind  her  b}'  his  own  agreement  for  ex- 
tension or  discharge.  And,  on  the  other  hand,  where  she  is 
a  mortgagee  in  her  own  right,  the  husband  cannot  alone  re- 
ceive payment  and  satisfaction  and  discharge  the  mortgage.* 
The  creditor's  agreement  of  defeasance  accompanying  the 
transaction,  or  covenants  on  his  part,  must  be  faithfully  ob- 
served;^ and  as  to  other  security  her  rights  are  the  usual 
ones.^  It  must  be  remembered  that  in  certain  States  a  con- 
servative policy  is  still  pursued,  so  as  to  prohibit  the  wife's 
mortgage  to  a  greater  or  less  extent,  and  with  reference,  per- 
haps, to  the  beneficial  nature  of  the  consideration.'^ 

§  153.  Wife's  Separate  Property  ;  Husband  as  Managing 
Agent.  —  The  undoubted  right  of  the  wife,  on  general  princi- 
ples, to  treat  her  husband  as  the  trustee  of  her  separate 
propert}',  has  given  rise,  under  the  married  women's  acts,  to 
perplexing  questions  as  between  herself  and  his  creditors. 
In  New  York,  her  privileges  in  this  respect  are  carried  very 
far ;  for  she  may  employ  her  husband  as  her  managing  agent 
to  control  her  property,  without  subjecting  it  to  the  claim  of 

1  Patterson  v.  Flanagan,  1  Ala.  s.  c.  *  McKinncy  v.  Hamilton,  51  Penn. 
427.  St.  63. 

2  Hutcliins  V.  Colby,  43  N.  H.  159;  ^  Lomax  v.  Smyth,  50  Iowa,  223. 
Yale  V.  Derlerer,  18  N.  Y.  265  ;  Johnson  6  Wilcox  v.  Todd,  64  Mo.  388. 

V.  Runyon,  21  Ind.  115.  '^  Bowers   v.  Van    Winkle,   41  Ind. 

3  See  Schoul.  Hus.  &  Wife,  §  274,  432  ;  Lippincott  v.  Mitchell,  91  U.  S. 
and  cases  cited.  Supr.  767.    See  further,  on  this  subject. 


Schoul.  Hus.  &  Wife,  §§  276,  277. 


216 


CHAP.  XI.]  DOMINION:    WIFE's  STATUTORY  PROPERTY.     §  1-54 

his  creditors ;  the  application  of  an  indefinite  portion  of  the 
income  to  his  support  does  not  impair  her  title  to  the  prop- 
erty ;  and  neitlier  lie  nor  his  creditors  Avill  acquire  an  interest 
in  the  property  through  his  services  thus  rendered.^  She 
may  give  him  a  power  of  attorney  and  require  him  to  pursue 
its  terms  carefully.^  In  Illinois,  too,  it  is  well  recognized 
that  the  wife  may  make  her  husband  her  agent  to  collect 
debts  due  her,  to  receive  from  others  the  income  of  her 
estate,  and,  like  other  agents,  to  manage  and  control  her 
separate  property  in  her  name.^  Such,  too,  is  the  rule  of 
certain  other  States,  to  the  practical  disadvantage  of  the  hus- 
band's creditors,  as  well  as  for  the  wife's  protection  against 
her  husband.^ 

The  husband's  agency,  whether  created  under  suspicious 
circumstances  or  not,  as  regards  the  public,  is,  like  other 
agencies,  a  matter  of  fact  for  legal  ascertainment  upon  all 
the  proof.  The  courts  in  Illinois  go  so  far  as  to  hold  that  the 
husband's  dealings  with  his  wife's  separate  property  will  now 
be  presumed,  in  the  absence  of  proof  to  the  contrary,  to  be  in 
the  character  of  agent,  even  as  to  the  proceeds  and  income 
thereof;  and  hence  rendering  him  liable  to  account  like 
other  agents,  with  allowance  of  his  reasonable  compensation, 
but  so  as  to  require  liim  to  establish  any  claim  he  may  make 
of  a  gift  or  legal  transfer  to  him,  by  due  proof  that  the  wife 
so  assented  and  understood ;  in  short,  that  tlie  common- 
law  rights  of  the  husband  to  the  wife's  property  are  swept 
away.^  But  in  such  a  presumption  other  States  by  no  means 
concur.^ 

§  154.  Husband  as  Managing  Agent ;  Services,  &c. ;  Hus- 
band's Creditors.  —  It  seems  to  be  the  well-settled  American 
doctrine  that,  by  working  upon  the  wife's  lands,  the  husband 
acquires  no  beneficial  interest  therein  which  can  be  enforced 

1  Buckley  v.  Wells,  33  N.  Y.  518;         6  Patten  v.  Patten,  75  III.  446. 
Knapp  I'.  Smith,  27  N.  Y.  277.  ^  Eystra   v.    Capelle,    Gl   Mo.    578. 

2  Nash  V.  Mitchell,  71  N.  Y.  199.  See,  further,  Aklridse  v.  Muirhead, 
8  Patten  v.  Patten,  75  111.  446.  101  U.  S.  Supr.  397  ;  Paine  v.  Fair,  118 
*  Altlridge  v.  Muirhead,  101  U.  S.     Mass.   74.     The    husband's   agency  is 

Supr.   397  ;    Coleman    v.    Semmes,  56     considered   at  length  in  Schoul.  Hus. 
Miss.  321 ;  Wells  v.  Smith,  54  Ga.  262.     &  Wife,  §§  277-280. 

217 


§  154  THE   DOMESTIC   KELATIONS.  [PART  II. 

ill  equity  on  behalf  either  of  himself  or  his  creditors,  in 
absence  of  a  definite  agreement  for  compensation  ;  unless, 
possibly,  it  could  be  shown  to  exceed  in  value  the  cost  of 
supporting  the  whole  family.^  The  crops  cannot  be  attached 
b}'  his  creditors.^  Nor  the  betterments,  buildings,  and  rents.^ 
Nor  is  his  use,  upon  his  wife's  farm,  of  teams  bought  with  her 
money,  a  conversion  in  any  such  sense  as  to  render  them 
attachable  for  his  debts.* 

With  the  assent  of  the  husband  and  father,  the  labor  of  the 
wife  and  children  may  be  bestowed  upon  the  separate  prop- 
erty of  the  wife,  and  thus  enure  to  their  benefit.  There  is  no 
known  rule  of  law  which  requires  the  husband  and  father  to 
compel  his  wife  and  children  to  work  in  the  service  of  his 
creditors.^  And  it  is  held  that  the  husband  may  stipulate, 
though  insolvent,  that  the  product  of  his  own  labor  shall  be 
appropriated  to  his  wife's  separate  use.*^  If  permitted  to  be 
maintained  upon  his  wife's  property,  he  does  not  necessarily 
acquire  a  title  to  the  property  or  its  products  merely  by  be- 
stowing his  voluntary  labor  upon  it.'^  And  a  similar  prin- 
ciple may  be  applied  to  a  wife  supported  from  her  husband's 
property.^ 

But  it  is  held  that  the  husband's  occupation  and  cultivation 
of  his  wife's  lands  with  her  assent  may  be  considered  as  be- 
stowed for  the  common  benefit  of  the  family,  or  so  as  to  give 
him  the  right  to  the  products  of  his  own  toil  like  that  of  any 
tenant ;  '-*  and  that  when  his  own  skill  and  service  were  the 
chief  source  of  emolument,  the  wife  ought  not  to  claim  all  as 

1  Buckley  v.  Wells,  33  N.  Y.   518 ;         *^  Hodges  v.  Cobb,  8  Rich.  50.     But 
Webster    v.    Hildreth,    33    Vt.     457  ;  see  Penn  v.  Whitelieads,  12  Gratt.  74. 
Clieuvcte  V.  Mason,  4  Greene  (Iowa),  "^  Rush  r.  Vouglit,  55  Penn.  St.  437; 
231 ;  Betts  v.  Betts,  18  Ala.  787  ;  Com-  Boss  v.  Gomber,  23  Wis.  284 ;  Merrick 
monweahh  u.  Fletcher,  6  Bush,  171.  v.   Pluniley,   99   Mass.   5G6  ;    Gage   v. 

2  Mclntyre  v.  Knowlton,  6  Allen,  Dauchy,  34  N.  Y.  2'J3 ;  Hazelbaker  v. 
565  ;  Lewis  v.  Jolins,  24  Cal.  98 ;  Allen  Goodfellow,  64  III.  238  ;  Feller  v.  Alden, 
V.  Higlitower,  21  Ark.  316.  23  Wis.  301. 

3  Wiiite  I.'.  Hildreth,  32  Vt.  265;  «  Burcher  y.  Ream,  68  Penn.  St.  421. 
Goss  ?;.  Caliill,  42  Barb.  310;  Wilkinson  See  Dean  v.  Bailey,  50  111.  481,  as  to 
V.  Wilkinson,  1  Head,  305;  Robinson  the  liability  of  a  farm  and  stock,  wliere 
V.  Hoffman,  15  B.  Monr.  80.  the  husband's  control  is  not  of  a  char- 

*  Spooiier  V.  Keynolds,  50  Vt.  437.        acter  inconsistent  witii  the  common  in- 
5  Johnson  v.  Vail,  1  McCart.  423.         terests  of  himself  and  wife. 

9  Elijah  V.  Taylor,  37  111.  247. 

218 


CHAP.  Xr.]  DOMINION:    WIFE's  STATUTORY  PROPERTY.     §  155 

lier  own  against  him.^  Moreover,  if  by  contract  express  or 
implied  the  wife  is  indebted  to  her  husbiiud  for  his  services  as 
managing  agent,  it  is  held  that  she  is  subject  to  garnishment 
at  the  instance  of  his  creditors.^ 

§  155.  Husband's  Dealings  with  "Wife's  Property  ;  Gift,  Fraud, 
Use  of  Income,  &c. —  Where  the  question  arises,  then,  whether 
the  husband  is  enjoying  the  wife's  property  by  way  of  gift 
from  her,  or  as  her  managing  attorney,  it  must  be  determined 
by  evidence.  In  either  case  the  advantage  seems  to  be  with 
husband  and  wife  in  all  controversies  with  the  creditor.  The 
general  rule  still  prevails,  however,  that  money  transactions 
between  husband  and  wife  should  be  free  from  fraud,  and 
not  prejudicial  to  pre-existing  creditors  of  the  husband.  The 
presumptions  are  not  equally  balanced  in  the  different  States. 
But  presumptions  of  a  gift  from  the  wife  are  not  to  be  strongly 
favored  where  the  husband  is  held  out  to  others  as  her  agent.^ 
So  gifts  of  income  would  be  more  readily  presumed  than  gifts 
of  capital.  Her  title  is  generally  open  to  inspection,  and  may 
be  challenged  for  fraud.*  But  it  is  fair  to  say  that  whenever 
she  gives  her  property  to  him  without  agreement  for  any  re- 
payment, but  for  investment  in  his  business,  and  to  afford 
him  credit  with  the  world,  and  he  so  invests  it  with  her 
knowledge  and  acquiescence,  or  takes  title  to  real  estate  in 
his  own  name,  with  her  acquiescence,  for  a  similar  purpose, 
his  bona  fide  creditors  ought  not,  especially  when  his  time 
and  energies  were  of  essential  value  to  it,  and  changes  of 
material  or  investment  are  such  as  to  render  identification  of 
the  property  as  hers  impossible,  to  suffer  afterwards,  who 
had  relied  upon  this  capital,  because  of  her  attempt  to  recall 
the  gift  when  she  finds  him  embarrassed ;  not  even  a  special 
partner  would  have  a  right  to  do  so.^   Furthermore,  an  invest- 

1  Glidden  v.  Taylor,  16  Ohio  St.  509.      1  W.  Va.  502  ;  Logan  v.  Hall,  19  Iowa, 

2  Keller  v.  Mayer,  55  Ga.  406.  491 ;  Bryant  v.  Bryant,  3  Busli,  155. 

8  See    Wales  v.   Newboukl,  9  Mich.  5  Kuiin   v.    Stansfield,  28   Md.  210 ; 

45;    Miller  v.  Edwards,   7  Bush,  394;  Wortman  v.  Price,  47  111.  22  ;  Mazouck 

Patten  y.  Patten,  75  111.446;  Aldridge  j;.NorthernIowaR.  R.  Co.,ol  Iowa,559; 

V.  Muirhead,  101  U.  S.  Supr.  397.  Lichtenberger  v.  Graham,  50  Ind.  288; 

*  See  Schoiil.  Hus.  &  Wife,  §  281;  Brooks  v.  Shelton,  54  Miss.  353;  Ma- 

Albin  V.  Lord,  39  N.  H.  196;  Hinney  v.  thews  v.  Sheldon,  53  Ala.  136 ;  Besson 

Phillips,  50  Penn.  St.  382;  Fox  i'.  Jones,  v.  Eveland,  26  N.  J.  Eq.  468.     As  to 

219 


§  155  THE   DOMESTIC   RELATIONS.  [PART   II. 

ment,  by  the  husband,  of  the  wife's  separate  means  and  prop- 
erty, whether  in  purchasing  real  estate  or  personal  property  for 
her  separate  use,  is  valid,  if  the  rights  of  creditors  be  not  thereby 
impaired.^  But  where  he  purchases  real  estate  or  other  prop- 
erty, and  procures  the  title  in  his  wife's  name  or  in  trust  for 
her,  when  largely  indebted,  the  validity  of  the  transfer  and  its 
good  faith  may  well  be  called  in  question,  especially  if  the 
means  were  not  clearly  furnished  from  her  separate  estate.^ 

While  the  wife  may  avoid  a  fraud  upon  her  as  against  all 
who  participated  therein,  it  is  held  that  a  valuable  creditor's 
rights  cannot  be  prejudiced  by  any  duress,  menace,  or  other 
misbehavior  of  the  husband,  which  procured  them  the  wife's 
security,  if  it  was  without  such  creditor's  instigation,  knowl- 
edge, or  consent.^  It  is  otherwise  if  the  hitter's  instigation, 
knowledge,  or  consent  appear.*  But  when  the  husband 
makes  a  void  transfer  as  his  wife's  trustee,  it  is  held  that  she 
can  follow  the  investment  into  other  hands.^  Or  she  may 
have  him  removed  from  his  trusteeship  for  suitable  cause.^ 

A  husband  has  no  right  to  agree  secretly  with  the  pur- 
chaser of  his  wife's  separate  property  for  a  portion  of  the 
real  consideration,  understating  the  nominal  consideration  to 
the  wife  ;  for  this  is  a  breach  of  faith  as  agent  or  trustee.'^ 
Fraud,  coercion,  abuse  of  marital  confidence,  can  be  alleged 
by  the  wife  against  an  unworthy  husband  in  support  of  her 
title,  whether  she  transferred  absolutely,  or  as  security  for 
his  debts.^  A  negotiable  instrument  executed  b}^  or  taken 
in  the  name  of  a  trustee  of  a  married  woman  will  be  regarded 


the   wife's   gratuitous   undertaking  to  Nelson  v.   Holly,    50   Ala.   3 ;   Singer 

subject  her  property  to  her  husband's  Man.  Co.  v.  Rook,  84  Penn.  St.  442; 

debts,  the    Pennsylvania   rule    is  that  Marston    v.    Brittenham,    7G   111.   611; 

equity  will  not  enforce   it,  but   leave  Conn.  Life  Ins.  Co.  v.  McCormick,  45 

the    parties    to    their    lesjal    remedies.  Cal.  480  ;  Hidl  i'.  Sullivan,  63  Ga.  126. 
White's  Appeal,  36  Penn.  St.  134.  *  Line  v.  Blizzard,  70  Ind.  23  ;  Has- 

1  Jackson  v.  Jackson,  91  U.  S.  Supr.  kit  v.  Elliott,  68  Ind.  4!)3. 

122.  5  George  v.  Ran<iom,  14  Cal.  658. 

2  See  Postnuptial  Settlements,  c.  ^  Rainey  v.  Rainey,  35  Ala.  282.  So 
post;  Snow  v.  Paine,  114  Mass.  520.  with  any  other  trustee  of  her  separate 
See,  further,  Sclioul.  Hus.  &  Wife,  §  property.  Johnson  v.  Snow,  5  R.  I.  72. 
282.  7  Beaudry  v.  Felch,  47  Cal.  183. 

3  Childs  V.  McChesney,  20  Iowa,  8  siiarpe  v.  McPike,  62  Mo.  300; 
431 ;  EdgTton  v.  Jones,  10  Mlnu.  427  ;  Darlington's  Appeal,  86  Penn.  St.  512. 

220 


CHAr.  XL]  DOMINION:    WIFE's  STATUTORY  PROPERTY.     §  155 

in  equity  as  manifesting  the  trust  for  her  benefit.^  Even 
promissory  notes  taken  in  the  husband's  name  are  open  to 
explanation  ;  and  evidence  aliunde  may  show  that  tlie}'"  be- 
longed to  the  wife's  sej^arate  property .^  Subject,  perhaps,  to 
equities  of  bona  fide  third  parties  for  consideration,  without 
notice  of  the  trust  in  strong  instances,  the  wife's  rights  are 
protected  in  equity  against  her  husband's  misdealings  with 
her  fund.3  And  if  a  husband  holds  a  legal  title  to  land  in 
trust  for  his  wife  or  family,  his  sale  and  transfer  of  the  pro- 
ceeds to  other  land,  taken  without  due  consent  in  his  own 
name,  will  not  enable  his  general  creditors  to  seize  and  appro- 
priate it  for  his  debts.'' 

Certain  States,  following  the  English  equity  doctrine, 
avoid  close  inquisition  into  the  husband's  management  of  his 
wife's  property,  by  limiting  the  time  during  which  the  hus- 
band's receipt  of  the  rents,  profits,  or  income  shall  charge 
him.^  It  is  held,  too,  that  a  wife,  by  allowing  her  husband 
for  a  long  series  of  years  to  appropriate  to  his  own  use,  or 
their  joint  use,  the  income  of  her  separate  estate,  forfeits  her 
right  to  compel  him  to  account,  until  at  all  events  she  re- 
vokes such  permission,  and  then  only  from  the  date  of  revo- 
cation.^ Such  a  rule  is  very  desirable  for  preserving  domestic 
peace,  and  ensuring  the  husband's  estate  after  death  against 
dubious  claims  ;  for  otherwise,  as  we  have  intimated,  and 
apart  from  the  wife's  delay  or  her  presumed  assent  to  house- 
hold expenses  or  to  a  gift  to  her  husband,  and  after  deducting 
his  charge  for  services,  the  husband,  where  regarded  as  purely 
an  agent,  is  obligated  to  account.  Even  admitting,  however, 
the  income  his,  the  husband  may  show  and  execute  an  intention 
of  preserving  such  income  as  his  wife's  separate  property.'^ 

1  Lewis  V.  Harris,  4  Met.  (Ky.)  353.         ^  Qne  year  from  date  of  such  receipt 

2  Buck  V.  Gilson,  37  Vt.  653;  Con-  is  the  Mississipj)!  limitation.  Hill  v. 
rad  V.  Sliomo,  U  Penn.  St.  193;  Baker    Bugg,  52  Miss.  3'J7. 

V.  Gregory,  28  Ala.  54i;  Fowler  v.  6  Lyon  j,.  Green  Bay  R.,  42  Wis. 
Rice,  31  Ind.  258.  548 ;    Reeder    v.   Flinn,   6  Rich.  216 ; 

3  See  Moulton  v.  Haley,  57  N.  H.  184.     Lishey  v.  Lishey,  2  Tenn.  Ch.  5. 

*  Shippen's    Appeal,   80   Penn.    St.  ^  Gill  v.  Woods,  81  111.  G4  ;  Patten 

391;  Porter    v.  Caspar,  54  Miss.  359;  v.  Patten,  75  111.  4415 ;  Bon gard  y.  Core, 

Schonl.  Hiis.  &  Wile,  §  284;  McConnell  82  111.  19,  supra,  §  141. 
V.  Martin,  52  Ind.  434. 

221 


§  157  THE   DOMESTIC   RELATIONS.  [PAET   II. 

On  the  whole  there  is  and  must  be,  throughout  this  transi- 
tion period,  conflict  in  the  authorities  as  to  the  effect  of  a 
husband's  receiving  the  proceeds  of  his  wife's  share  in  inher- 
ited property,  or  of  some  sale  or  investment  in  her  sole  right: 
States  which  abide  by  the  common  law  of  coverture  inclining 
to  sustain  his  ancient  right  of  reduction  into  possession,  and 
presuming  in  his  favor ;  ^  and  States,  on  the  other  hand, 
under  the  impress  of  the  new  legislative  policy,  reserving  her 
title,  unless  she  plainly  and  voluntarily  divests  herself  of 
separate  rights.^ 

§  156.  Married  Woman  as  Trustee.  —  Appointing  a  married 
woman  trustee  may  be  considered  objectionable  (apart  from 
equity  rules  of  constructive  trust)  while  the  law  yet  fails  to 
divest  her  of  all  coverture  disabilities,  so  as  to  make  her  both 
efficient  and  responsible  in  the  legal  sense.  Yet  it  is  held  in 
some  States  that  a  married  woman  may,  under  the  statutes, 
hold  an  estate  in  trust,  and  make  contracts  accordingl3\3 

§  157.  Tendency  as  to  Wife's  Binding  Capacity ;  her  Estop- 
pel.—  There  is  now  little  or  no  limit  upon  the  wife's  legal 
capacity  to  bind  her  statutory  estate  to  the  discharge  of  lia- 
bilities created  on  account  thereof,  in  Ohio,  Wisconsin,  Mas- 
sachusetts, New  York,  Illinois,  and  some  other  States.  In 
Illinois  it  is  said  that  capacity  to  make  contracts  respecting 
her  separate  property  is  an  implication  of  law  and  not  of 
equity,  and  consequently  all  contracts  made  by  her  within 
the  scope  of  that  legal  capacity  are  legal  contracts,  and  cog- 
nizable in  the  courts  of  law.^ 

As  a  natural  result  of  the  first  modern  innovations  upon 
the  coverture  theorjs  it  may  be  observed  that,  while  estoppel 
does  not  work  against  a  married  woman  so  readily  as  against 
persons  sui  juris^  it  is  held  in  various  recent  instances,  and 
justly  too,  that  where  married  women  make  agreements  by 

1  Reade  v.  Earle,  12  Gray,  423 ;  3  Springer  v.  Berry,  47  IMe.  330. 
Windsor  v.  Bell,  61  Ga.  671  ;  Nevius  See  Peraberton  v.  McGill,  1  Dr.  &  Sm. 
V.  Gourley,  9o  111.  206 ;  Jacobs  v.  Hes-    266. 

ler,  113  Mass.  157.  *  Williams  v.  Hugunin,  69  III.  214; 

2  Nissley   v.   Heisey,  78   Penn.   St.     Sclioul.  Hus.  &  Wife,  §  288. 
418;   Penn  v.  Young,   10  Bush,  626; 

Meyer's  Appeal,  77  Penn.  St.  482. 

222 


CHAP.  XI.]  DOnnNioN:  wife's  statutoky  property.    §  158 

fraudulent  means,  with  reference  to  their  separate  property, 
and  thus  obtain  inequitable  advantages,  a  court  of  chancery 
will  treat  them  as  estopped  from  setting  up  and  relying  on 
their  coverture  to  retain  the  advantage.^ 

§  158.  Proceedings  for  Charging  Wife's  Separate  Estate.  — 
The  married  women's  acts  in  some  States  make,  as  might  be 
anticipated,  a  radical  change  in  the  character  of  the  practice 
for  reaching  the  wife's  separate  property.  According  to  the 
English  practice,  and  that  prevalent  now  or  formerly  in  most 
States,  there  was  no  personal  judgment  against  a  married 
woman.  But  a  chancery  decree  was  directed  against  the 
separate  property  of  the  wife,  declaring  the  separate  estate 
vested  in  the  wife  at  the  date  of  the  decree,  which  it  was 
within  her  power  to  dispose  of,  chargeable  with  the  payment 
of  the  debt.2  The  debt  was  not  a  lien  upon  the  wife's  sepa- 
rate estate  until  made  so  by  decree  of  the  court  of  equity, 
and  the  lien  was  by  virtue  of  such  decree.^  Under  such  pro- 
ceedings there  was  onl}^  a  sort  of  equitable  execution,  the 
decree  reaching  only  property  which  the  wife  had  power  to 
bind,  and  no  personal  judgment  being  awarded  against  her, — 
nothing  from  which  direct  personal  liability  on  her  part  could 
be  predicated. 

But  under  this  recent  married  women's  legislation  the  same 
judgment  is  required,  with  the  same  process  for  its  enforce- 
ment, as  would  be  awarded  if  the  woman  were  sole  ;  saving, 
perhaps,  the  usual  exemptions,  and  treating  the  wife's  prop- 
erty in  such  case  substantially  as  the  husband's  property 
might  be  treated  were  the  judgment  rendered  against  him 
and  the  liability  his.  And  where  such  is  the  practice,  no 
equitable  circumstances  can  usually  be  alleged,  calling  for  the 
intervention  of  a  court  of  equity.*  Legal  attachment  on 
mesne  process,  or  by  way  of  legal  execution  against  a  mar- 

1  Coolidge  r.  Smith,  129  Mass.  554  ;  Ohio  St.  79  ;  Armstrong  v.  Ross,  20  N. 
Patterson  v.  Lawrence,  90  111.  174.    See    J.  Eq.  109. 

further,  Sclioul.  Hus.  &  Wife,  §  288.  3  j^.  .  Schoul.  Hus.  &  Wife,  §  289. 

2  Johnson  v.  Gallagher,  3  De  G.  F.  «  Stevens  v.  Reerl,  112  Mass.  515; 
&  J.  520  ;  Collett  v.  Dickenson,  L.  R.  Patrick  v.  Littell,  36  Ohio  St.  79;  Cook- 
11  Ch.  D.   687;  Patrick  v.  Littell,  36  son  v.  Toole,  59  III.  515;  Andrews  v. 

Monilaws,  15  N.  Y.  Supr.  65. 
223 


§  159  THE  DOMESTIC   RELATIONS.  [PART  II. 

ried  woman,  maybe  made  under  such  statutes  ;^  or,  in  appro- 
priate instances,  the  foreign  attachment  or  trustee  process 
applied.2  Even  upon  her  covenants  the  wife  may,  in  some 
States,  be  sued  like  a  single  woman.^ 

On  the  whole,  policy  still  disinclines  to  permit  a  personal 
judgment  to  be  rendered  against  a  married  woman,  even  on 
what  purports  to  be  her  personal  obligation.  The  subjec- 
tion of  the  wife's  property,  furthermore,  under  these  acts, 
extends  to  all  her  statutory  separate  estate,  or,  as  might  gen- 
erally turn  out,  by  the  changing  of  equitable  into  statutory 
estates  by  operation  of  legislation,  all  her  separate  property. 
And  by  this  means  the  old  distinction  between  the  real  and 
jDcrsonal  separate  estate  becomes  well-nigh  obliterated.* 

§  159.  English  Married  Women's  Act;  Wife's  Disposition. — 
In  England  the  married  women's  property  act  of  1870,  with 
its  later  amendments,  indicates  some  change  of  parliamentary 
policy  in  the  same  practical  direction.  But  the  English 
courts  still  incline,  as  would  the  American  under  statutes  of 
dubious  import,  to  render  the  separate  property  of  the  wife 
liable  by  subjecting  her  to  the  ordinary  process  of  law  and 
equity.^  The  wife  cannot  be  sued  alone  in  respect  of  her 
separate  estate  in  the  common-law  courts,  under  the  act  of 
1870,  for  the  price  of  goods  sold  her  during  coverture,  but, 
as  formerly,  the  husband  must  be  joined.*^ 

1  See  language  of  Hoar,  J.,  in  Wil-  5  Ex  paiie  Holland,  L.  R.  9  Ch. 
lard  V.  Eastliam,  15  Gray,  328.                   App.  307. 

2  Powers  V.  Totten,  42  N.  J.  L.  442.  «  Hancocks  v.  Lablache,  26  W.  R. 

3  Worthington  v.  Cooke,  -52  Mo.  297.     402 ;  Davies  v.  Jenkins,  L.  R.  6  Ch.  D. 
*  For  various  points  of  modern  stat-     728. 

utory  practice,  see  Sciioul.  Hus.  &  Wife, 
§289. 

224 


CHAP.  XII.]  wife's  pin-money.  §  160 


CHAPTER  XII. 

THE  wife's   pin-money,  SEPARATE   EARNINGS,  AND  POWER 

TO   TRADE. 

§  160.  The  Wife's  Pin-Money.  —  The  wife's  pin-money  con- 
stitutes a  feature  of  English  marriage  settlements  in  modern 
times.  Pin-money  may  be  defined  as  a  certain  provision  for 
the  wife's  dress  and  pocket,  to  which  there  is  annexed  the  duty 
of  expending  it  in  her  "  personal  apparel,  decoration,  or  orna- 
ment." 1  It  differs  from  the  wife's  separate  estate  in  being 
a  gift  subject  to  conditions,  and  not  at  her  absolute  disposal. 
It  differs  from  her  paraphernalia  in  being  subject  to  her  con- 
trol during  marriage,  and  not  awaiting  the  husband's  death.^ 
The  exact  period  when  pin-money  was  first  introduced  into 
England  is  not  known.  Lord  Brougham  inclines  to  ascribe  it 
to  the  feudal  times.^  But  there  is  equally  good  authority  for 
fixing  the  date  at  the  Restoration  ;  and  the  lawyers  resort  to 
Addison's  "  Spectator  "  in  proof  of  the  latter  supposition.* 
The  popular  name  of  this  provision  scarcely  suggests  its  real 
.significance  ;  for,  so  far  from  being  a  petty  allowance,  it  is 
often  of  the  most  liberal  amount  imaginable.^ 

The  subject  of  the  wife's  pin-money  seems  to  have  received 
little  attention  in  this  country.^  And  in  England  few  cases 
of  the  sort  have  ever  arisen.  It  is  found  more  convenient  in 
marriage  contracts  to  settle  a  certain  allowance  upon  the 
wife  by  way  of  separate  estate,  which  allowance  is  subject 

1  Per  Lord  Langdale,  Jodrell  v.  5  jri  one  reported  English  case,  by 
Jodroll,  9  Beav.  45;  Howard  v.  Digby,  no  means  recent,  £13,000  a  year  was 
2  CI.  &  Fin.  654.  secured  to  the  wife  as  her  pin-money. 

2  Macq.  Hus.  &  Wife,  318  ;  Peachey  See  2  Russ.  1,  and  n.  to  Macq.  Hus.  & 
Mar.  Settl.  298;  c.  post.  Wife,  318. 

3  2  Ci.  &  Fin.  676.  6  B„t  see  Miller  v.  Williamson,   5 
*  Spectator,  295.     See  Peachey  Mar.     Md.  219. 

Settl.  300  ;  Sugd.  Law  Prop.  165. 


16 


225 


§  162  THE    DOMESTIC   RELATIOXS.  [PART   H. 

to  the  usual  incidents  of  separate  property.     Decisions  as  to 
pin-money  and  separate  estate  are  frequently  confounded. ^ 

§  161.  Wife's  Housekeeping  Aliowance  —  The  wife  was  for- 
merly supposed  also  to  gain  a  title  to  savings  out  of  her 
housekeeping  allowance.^  So  where  the  husband  allowed 
the  wife  to  make  profit  of  butter,  eggs,  poultry,  and  other 
farm  produce,  which  allowance  he  called  her  pin-money,  it 
was  held  that  she  acquired  a  separate  ownership  therein.^ 
But  these  cases  rest  upon  questionable  authority.^  And 
more  recently  it  has  been  decided  that,  where  the  wife  of  a 
farmer,  with  his  knowledge  and  sanction,  deposited  the 
produce  of  the  surplus  butter,  eggs,  and  poultry  with  a  firm 
in  her  own  name,  and  he  called  it  "  her  monej^,"  and  on  his 
death-bed  gave  his  executor  directions  to  remove  the  money, 
and  do  the  best  he  could  with  it  for  his  wife,  such  evidence 
was  insufficient  to  establish  a  gift  between  them,  and  that  the 
husband  had  made  neither  the  firm  nor  himself  trustee  for  his 
wife.^  In  all  cases  of  this  sort  the  husband's  permission,  he 
not  having  deserted  her,  constitutes  an  important  element  of 
the  wife's  title.  And  the  mere  fact  that  a  wife  is  in  the  use 
and  enjoyment  of  clothing,  or  other  personal  property,  is 
held  insufficient  to  establish  her  right  to  a  separate  estate 
therein.^ 

§  162.  Wife's  Earnings  belong  to  the  Husband;  Legislative 
Changes,  &c.  —  Indeed,  the  \a  ell-settled  principle,  both  of  law 
and  equity,  is  that,  in  absence  of  a  distinct  gift  from  the  hus- 
band, all  the  wife's  earnings  belong  to  him  and  not  to  her- 

1  See  Lord  Brougham,   in  Howard  In  other  ways,  too,   the   wife's   claim 

V.  Digby,  2  CI.  &  Fin.  670,  commenting  may  be  barred.     Schoul.  IIus.  &  Wife, 

upon  2  Roper  Hus.  &  Wife,  138.    In  this  §  292. 

leading  case,  which  went  to  the  House  '^  Paul  Neal's  Case,  Prec.  in  Ch.  44, 

of  Lords  in  1834,  the  whole  subject  re-  297.  But  see  Tyrrell's  Case,  Freem.  304. 

ceives  ample  discussion.     Its  main  deci-  ^  Slanning  w.  Style,  3  P.  Wins.  337 

sion  was  to  the  effect  that  the  personal  *  See  Macq.  Hus.  &  Wife,  320. 

representatives  of   the  wife  could  not  ^  Mews  v.  Mews,  15  Beav.  529.   See 

recover   arrears.     The   correctness    of  McLean  v.  Longlands,  5  Ves.  78,  cited 

its   principle  has   been  questioned   by  herein  with  approval.     And  see  Rider 

some    writers.     In    general    the   usual  v.    Hulse,  33   Barb.  264,  for  a   similar 

equity  rule  against  claiming  more  than  American  decision, 

one  year's  arrears  appears  to  apply  to  ^  State  v.  Pitts,  12  S.  C.  180;  supra, 

separate  estate  and   pin-money  alike.  §  82. 

226 


CHAP,  xn.]       wife's  separate  eaenings.  §  162 

self.^  But  by  recent  statutes,  enacted  in  many  of  the  United 
States,  married  women  are  allowed  the  benefits  of  their  own 
labor  and  services  when  performed,  or  even  contracted  to  be 
performed,  on  their  sole  and  separate  account,  free  from  all 
control  or  interference  of  a  husband.^  The  English  married 
women's  act  of  1870,  moreover,  recognizes  the  wife's  right  to 
her  separate  earnings.^  These  statutes  vary  somewhat  in 
their  terms.  The  amount  she  may  thus  acquire  is  in  certain 
States  limited  to  a  specific  sum,  and  statutes  sometimes  dis- 
criminate so  as  to  protect  simply  the  wife's  earnings  derived 
from  labor  for  another  than  her  husband."^ 

The  presumptions  here  concerning  the  wife's  title  to  her 
earnings  seem  to  be  much  the  same  as  in  other  separate  prop- 
erty purporting  to  belong  to  her.^  Questions  of  identity,  too, 
in  tracing  an  investment  of  earnings,  are  applicable,  as  in 
other  cases  of  separate  property.  There  is,  however,  appar- 
ently less  favor  shown  by  our  courts  to  the  legislative  grant 
of  separate  earnings,  than  to  that  of  acquisitions  to  a  wife's 
separate  use  from  other  sources  ;  and  still  less,  as  we  shall 
soon  see,  to  statutes  extending  the  wife's  right  of  acquiring 
earnings  to  a  permission  to  embark  in  business  on  her  own 
account.  The  presumption  is  said  to  be,  that  a  wife's  ser- 
vices, rendered  even  to  her  own  mother  on  a  basis  of  compen- 
sation, were  given  on  the  husband's  behalf.^  And  where  the 
proceeds  of  her  earnings  have  been  so  mixed  up  with  her 
husband's  property  as  not  to  be  easily  distinguishable,  the 
disposition  is  to  regard  the  whole  as  belonging  to  the  hus- 
band.''    The  idea,  moreover,  is  not  favored,  of  permitting  a 

1  For  the  old  common-law  rule,  see  v.  Delias,  65  111.  469 ;  Whitney  v.  Beck- 
snpra,  §  81  ;  Jones  v.  Keid,  12  W.  Va.     with,  31  Conn.  696. 

350;  Douglas  v.  Gausman,  68  111.  170;  3  Supra,    %l\\\   Lovell  v.  Newton, 

Kelly  V.  Drew,  12  Allen,  107;  Glaze  v.  L.  R.  4  C.  P.D.  7. 

Blake,  56  Ala.  379.  4  ^n^w  v.  Cable,  19  Ilun,  280. 

2  See  latest  statutes  of  New  York,  5  Raybold  v.  Raybold,  20  Penn.  St. 
Massachusetts,    Illiode    Island,    Mary-  308;    Elliott   v.    Bently,  17  Wis.    591; 
land,  Kansas,  and  California.     And  see  Lainsr  "•  Cunningham,  17  Inwa,  510. 
Cooper  V.  Alger,  51  N.  H.  172;  Fowle  «  Morgan  v.  Bolles,  36  Conn.  175. 

V.  Tidd,  15  Gray,  94  ;  Tunks  v.  Grover,  7  Quidort  v.  Pergaux,  3  C.  E.  Green, 

67  Me.  586;  Meriwether  v.  Smith,  44  472;   McCluskey  ;;.  Provident  Tnstitu- 

Ga.  541 ;   Berry  v.  Teel,  12  R.  I.  267  ;  tion,  103  Mass.  300;  Kelly  v.  Drew,  12 

Attebury   v.   Attebury,   8   Oreg.    224 ;  Allen,  107. 
Larimer  v.  Kelley,  10  Kan.  298 ;  Jassoy 

227 


§  163  THE   DOMESTIC    RELATIONS.  [PAUT   H. 

wife  to  forsake  the  matrimonial  domicile,  or  neglect  her 
household  duties,  without  her  husband's  consent,  for  the 
purpose  of  acquiring  earnings  for  her  separate  use,  especially 
if  her  husband  be  still  legally  bound  to  support  her  by  his 
own  labor.^  It  may  be  added  that,  in  general,  statutes  which 
authorize  married  women  to  hold  property  acquired  by  gift, 
grant,  or  purchase,  from  any  person  other  than  the  husband, 
do  not  carry  tlie  wife's  earnings  bj'  implication.^ 

Independently,  therefore,  of  statutes  which  plainly  secure 
to  married  women  their  separate  earnings  under  the  circum- 
stances, it  is  held  that  an  agreement  between  the  wife,  with 
the  knowledge  and  consent  of  her  husband,  and  a  third  per- 
son, for  nursing  and  attention,  the  stipulation  being  that  she 
shall  be  paid  what  her  services  are  reasonably  worth,  gives  to 
the  wife  no  title  as  against  her  husband,^  nor  right  to  main- 
tain her  separate  action.*  On  general  principles  of  equity, 
however,  the  husband  may,  in  this  country,  as  in  England, 
create  in  his  wife  a  separate  estate  in  the  proceeds  of  her  own 
toil ;  the  validity  of  such  a  gift,  as  against  creditors,  being 
subject  to  the  same  rules  which  apply  to  other  voluntary  con- 
veyances.^ Such  a  gift  on  his  part,  once  made,  the  husband 
cannot  annul,  by  a  subsequent  investment  of  the  proceeds  in 
his  own  name.^ 

§  163.  Wife's  Power  to  Trade  ;  Earlier  English  Rules.  —  The 
wife's  power  to  carry  on  a  separate  trade  is  another  topic, 

1  Douglas  v.  Gausman,  68  111.170;  (N.  Y.)  484.  And  see  Skillman  v. 
Mitchell  V.  Seitz,  94  U.  S.  Supr.  580.  Skillman,  15  N.  J.  Ch.  478;  Sclioul. 
But  see  Duncan  v.  Cashin,  L.  R.  10  C.     Hus.  &  Wife,  §  295. 

p.  5,54.  5  Pinkston    v.   McLemore,  31    Ala. 

2  Rider  v.  Hulse,  33  Barb.  264;  308;  Neufville  v.  Thompson,  3  Edw. 
Hoyt  V.  White,  46  N.  H.  45;  Merrill  v.  Ch.  92;  Barron  v.  Barron,  24  Vt.  375; 
Smith,  37  Me.  394  ;  Grover  v.  Alcott,  Richardson  r.  Merrill,  32  Vt.  27  ;  Jones 
11  Mich.  470;  Baxter  v.  Prickett,  27  v.  Reid,  12  W.  Va.350;  Glaze '^  Blake, 
Ind.  400  ;  Bear  v.  Hays,  36  111.  280.  56    Ala.    370  ;    Schoul.    Hus.    &  Wife, 

3  Woodbeck  v.  Havens,  42  Barb.  66.  §  296.  See  Postnuptial  Settlements, /losf, 
And  this,  even  though  the  husband  where  the  rule  is  more  fully  stated, 
makes  of  his  house  a  sort  of  hospital,  ^  Rivers  v.  Carleton,  50  Ala.  40; 
and  his  wife  assists  him.  Reynolds  v.  White  v.  Oeland,  12  Rich.  308;  Mason 
Robinson,  64  N.  Y.  589.  And  see  El-  v.  Dunbar,  43  IMich.  407.  Wife's  earn- 
liott  I'.  Bently,  17  Wis.  591 ;  Duncan  v.  ings  are  sometimes  bestowed  on  her  by 
Roselle,  15  Iowa,  501 ;  McKavlin  v.  statute,  where  the  husband  deserts. 
Bresslin,  8  Gray,  177.  Schoul.  Hus.  &.  Wife,  §  297.     See  fur- 

*  See  Beau  v.  Kiah,  6  Thomp.  &  C.     ther,  as  to  earnings,  ib.  §  298. 

228 


CHAP.  XII.]  wife's  sepahate  teade.  §  163 

known  long  ago  to  the  law  of  England ;  and  in  tins  respect 
our  American  legislation  of  the  present  day  seems  to  have 
been  somewhat  anticipated.  The  wife's  lawful  power  to 
carry  on  a  trade  on  her  own  account,  independently  of  her 
husband,  like  most  of  her  other  separate  privileges,  is  founded 
at  the  common  law  upon  contracts  made  with  her  in  deroga- 
tion of  the  husband's  marital  rights.  It  appears  that  a  wife, 
desiring  to  go  into  business  on  her  own  account,  makes  an 
agreement  with  her  husband.  When  the  agreement  is  made 
before  marriage,  it  will  bind  the  husband  and  his  creditors ; 
when  made  during  the  coverture,  it  binds  the  husband  only, 
and  is  void  against  his  creditors.^  And  the  husband  will 
be  liable  for  the  debts,  if  it  appeared  that  he  participated 
with  the  wife  in  the  benefits.^  Separate  trading  was  also  per- 
mitted the  wife  by  the  "  custom  of  London  ;  "  and  herein  she 
was  regarded  as  liable  to  arrest  and  imprisonment  for  debt 
without  her  husband,  and,  moreover,  might  be  declared  a 
bankrupt.^  And  if  the  husband  had  any  concern  in  the  busi- 
ness, the  wife  was  not  to  be  treated  as  a  feme  sole  in  respect 
of  it.4 

Notwithstanding  these  provisions  of  the  law,  it  does  not 
appear  that  separate  trading  in  England,  prior  to  the  inno- 
vations introduced  with  the  married  women's  act  of  1870,  was 
ever  very  common.^  The  difficulties  in  the  way  of  establishing 
credit,  and  of  negotiating  securities,  on  the  wife's  sole  behalf, 
were  probably  found  insurmountable,  even  though  married 
women  might  be  found  anxious  to  assume  the  responsibilities 
of  trade,  with  its  incidental  imprisonment  for  debt.  The  judi- 
cial evidence  of  this  separate  trading  is  supplied  chiefly  by 


1  Macq.  Hus.  &  Wife,  321 ;  2  Bright  3  Beard  v.  Webb.  2  B.  &  P.  97.  See 
Hus.  &  Wife,  292 ;   Lavie  v.  Piiillips,  3  2  Roper  Hus.  &  Wife,  124. 

Burr.   1783;    2   Roper   Hus.    &  Wife,  *  2  Briglit   Hus.    &   Wife,    77,  78; 

1G5,  175,  and  cases  cited.    See  Antenup-  Lavie  v.  Piiillips,  3  Burr.  1776  ;  Schoul. 

tial   and   Postnuptial    Settlements,  cs.  Hus.  &  Wife,  §  300. 

post.  6  But  see  the  recent  cases  of  Tal- 

2  Jarman  V.  Wooloton,  3  T.  R.  618  ;  bot  v.  Marshfield,  L.  R.  3  Ch.  622; 
2  Briglit  Hus.  &  Wife,  297;  Schoul.  Re  Peacock's  Trusts,  L.  R.  10  Ch. 
Hus.  &  Wife,  §299;  Barlow  y.  Bishop,  D.  490;  Ashworth  v.  Outram,  L.  R. 
1  East,  432 ;  Petty  i-.  Anderson,  2  Car.  5  Ch.  923 ;  Schoul.  Hus.  &  Wife, 
&  P.  38;  Macq.  Hus.  &  Wife,  322.  §  301. 

229 


§  164  THE  DOMESTIC   KELATIONS.  [PART   n. 

the  misfortunes  such  trade  entailed  upon  the  women  who 
embarked  in  it.  Even  where  the  wife  Hved  apart  from  her 
husband  (a  very  important  consideration  i),  and,  having  her 
separate  estate,  carried  on  a  trade,  it  was  doubted,  in  an  im- 
portant case  of  which  we  have  spoken  elsewhere,  whether 
tlie  tradesman  furnishing  supplies  had  any  demands  upon 
that  estate  which  equity  could  recognize.^ 

§  164.  "Wife's  Power  to  Trade;  American  Equity  Rule.  —  This 
doctrine  of  the  wife's  power  to  trade  comes  up  anew  in  the 
United  States  of  late  years,  with  our  recent  policy  in  favor 
of  the  independence  of  married  women.  And  the  rule  seems, 
apart  from  late  legislation,  to  be  well  established  in  the 
United  States,  that  the  husband,  in  pursuance  of  a  marriage 
contract,  antenuptial  or  postnuptial,  may  confer  upon  his 
wife  the  right  to  trade  for  her  exclusive  benefit.^  Nor  have 
the  American  cases  uniformly  insisted  upon  formal  contracts 
for  this  purpose  between  husband  and  wife  ;  seemingly  re- 
garding the  question  as  one  of  mutual  and  bona  fide  inten- 
tion merely.^  The  husband's  assent  is  in  general  necessary, 
provided  they  live  together ;  and  if  they  do  not,  different 
considerations  apply.^  And  apart  from  statute,  it  would 
appear  to  be  the  general  rule,  that  unless  the  husband's  con- 
sent that  the  wife  carry  on  business  in  her  own  name  is  based 
upon  a  sufficient  consideration,  he  may  withdraw  it  at  any 
time  and  assert  his  common-law  rights.^ 

1  See  Separation,  post.  son,  42  Penn.  St.  311 ;  Todd  v.  Lee,  16 

2  Cf.  Bruce  &  Turner,  Lord  Jus-  Wis.  480;  Mayhew  v.  Baker,  15  Ind. 
tices,  in  Jolinson  v.  Gallagher,  3  De  G.  254  ;  Sclioul.  Hus.  &  W^ife,  passim, 
r.  &  J.  494.  §§  303,  304. 

3  Richardson  v.  Merrill,  32  Vt.  27;  ^  Cropsey  w.  McKinney,  30Barb.47; 
Tillman  v.  Sliackleton,  15  Mich.  447  ;  Green  i-.  Pallas,  1  Beasl.  2(37. 
Wieman  v.  Anderson,  42  Penn.  St.  31 1 ;  •>  Conklin  v.  Doul,  67  III.  355 ;  Crop- 
Duress  V.  Horneffer,  15  Wis.  195;  sey  f .  McKinney,  30  Barb.  47  ;  Todd  w. 
James  v.  Taylor,  43  Barb.  530;  Wilt-  Lee,  16  Wis.  480;  Richardson  v.  Mer-^ 
haus  t;.  Liidicus,  5  Rich.  326;  Uhrig  y.  rill,  32  Vt.  27;  Partridge  v.  Stocker, 
Horstman,  8  Bush,  172;  Cowan  v.  3G  Vt.  108;  Penn  ;;.  Wliitehead,  17 
Mann,  3  Lea,  229.  Gratt.    503  ;     King   v.   Thompson,   87 

4  See  per  Redfield,  C.  J.,  in  Rich-  Penn.  St.  365.  Some  old  statutes 
ardson  v.  Merrill,  32  Vt.  27  ;  Partridge  recognizing  the  wife  as  a  feme  sole 
V.  Stooker,  .36  Vt.  108 ;  Penn  v.  White-  trader  appear  to  have  existed  in  Penn- 
head,  17  Gratt.  503;  Tillman  v.  Shack-  sylvania  and  South  Carolina.  Schoul. 
leton,  15  Mich.  447  ;  Wieman  i'.  Auder-  Hus.  &  Wife,  §  305. 

230 


CHAP,  XII.]  wife's   separate   TRADE.  §  165 

On  the  other  hand,  in  North  Carolina  the  whole  doctrine  of 
separate  trading  is  expressly  repudiated.^  Indeed,  our  earlier 
American  cases  seem  to  have  regarded  with  very  little  favor 
the  doctrine  that  the  wife,  while  living  with  her  husband, 
could  carry  on  a  business  of  her  own  without  rendering  her 
husband  liable  and  subjecting  her  stock  in  trade  to  his  debts.^ 
And  the  same  may  be  said,  at  this  day,  of  States  whose  legisla- 
tures have  not  freely  conceded  rights  to  married  women.^ 

§  165.  Conclusion  from  English  and  American  Decisions.  — 
The  conclusion  to  be  drawn  from  this  class  of  cases  is  that, 
modern  policy  having  once  conferred  upon  the  wife  large 
powers  both  as  to  the  acquisition  and  enjoyment  of  sepa- 
rate property,  as  well  as  the  right  to  invest  and  reinvest  the 
same,  including  their  rights  under  marriage  settlements,  mar- 
ried women  naturally  sought  business  opportunities  with  their 
capital ;  and  thus  the  modern  courts,  confronted  with  the 
practical  results,  and  aided  by  precedents  from  old  local  cus- 
toms or  old  legislation,  were  drawn  into  the  practical  conces- 
sion of  trading  privileges,  and  hence  of  trading  liabilities, 
while  professing  to  deny  to  the  wife  on  general  principles  the 
right  to  engage  in  mercantile  pursuits  without  more  explicit 
statute  provisions  to  that  effect,  and  while  requiring  the  assent 
of  the  husband  to  appear. 

When  it  is  clearly  for  the  wife's  advantage  to  reap  the 
benefits  of  her  business,  the  disposition  of  the  law  to  yield 
them  must  be  strong;  but  where,  as  must  often  be  the  case, 
she  speculates  imprudently  and  becomes  deeply  involved,  the 
court  is  perplexed,  though  doubtless  anxious  to  relieve  her. 
In  some  leading  cases,  upon  this  point,  we  find  the  married 
woman  who  has  subjected  her  property  to  the  demands  of 
her  husband's  creditors  permitted  to  stand  in  equity,  where 
the  business  fails,  as  a  sort  of  preferred  creditor,  for  her 
manifest  benefit.*     The  creditor's  claim  for  supplies  is  of  at 

1  McKinnon  r,  McDonald,  4  Jones  Woodcock  v.  Reed,  5  Allen,  207,  per 
Eq.  1.     As  to  Alabama,  see  Newbrick    curiam 

L\  Dugan,  61  Ala.  2ol.  *  Penn  v.  Whitehead,  17  Gratt.  503; 

2  Mat:kinley  v.  McGregor.  3  Whart.  Richardson  v.  Merrill,  32  Vt.  27  ;  Cowan 
378,  and  cases  cited.  r.  Mann,  3  Lea,  229      See  Bellows  v. 

«  Godfrey  v.  Brooks,  5  Harring.  396 ;    Rosenthal,  31  Ind.  1 16. 

231 


§  166  THE   DOMESTIC   RELATIONS.  [PART   n. 

least  doubtful  equity  ;  ^  such  indebtedness  must  usually  be 
pronounced  void  at  law ;  ^  while  even  equity  Avill  decline  to 
enter  a  decree  establisliing  a  charge  on  the  wife's  estate,  un- 
less the  husband,  or  some  other  trustee  for  the  wife,  is  prop- 
erly before  the  court.^  And  if  equity,  unaided  by  legishition, 
preserves  the  separate  capital  thus  invested  in  trade,  that 
the  wife  may  enjoy  its  benefits,  it  is  otherwise  with  profits 
which  may  have  accrued  beyond  the  interest  of  such 
capital.* 

§  166.  Enlargement  of  Wife's  Power  to  Trade  under  Recent 
Statutes.  —  But  the  doctrine  of  a  wife's  separate  trading  is  at 
tins  day  to  be  considered  under  the  combined  influence  of 
modern  equity  decisions  as  to  the  wife's  Jus  disponendi.  and 
the  recent  married  women's  acts.  The  English  act  of  1870 
declares  that  wages  and  earnings  of  a  married  woman  shall  be 
her  separate  property;-''  under  construction  of  which  act,  the 
English  chancery  has  lately  sustained  the  right  of  a  butcher's 
wife  to  carry  on  her  husband's  business  upon  her  separate 
resources,  he  being  incapacitated  through  delirium  tremens, 
and,  while  at  home,  offering  no  obstruction  to  her  course.® 
Again,  both  under  the  act  of  1870  and  independently  of  it, 
chancery  protected  the  widow's  interests  as  against  the  hus- 
band's administrator,  after  his  death,  in  a  valuable  fruit-pre- 
serving business,  which  she  had  commenced  while  single ; 
then  continued,  after  her  marriage  in  1874,  to  carry  on  in  her 
maiden  name,  her  husband  consenting.^ 

The  recent  married  women's  acts  in  many  of  the  United 
States  have  enlarged  and  more  full}''  established  the  wife's 
power  to  trade  on  her  own  account ;  and  the  profits  of  her 


'  Johnson  v.  Gallaglier,  3  De  G.  F.         5  Act  33  &  34  Vict.  c.  93 ;   supra, 

&  J.  494  ,  Copelanil  v.  Cunningham,  31  §  203. 

Ind.  116.     But  see  Todd  v.  Lee,  16  Wis.         e  Lovell  v.  Newton,  L.  R.  4  C.  P.  D. 

480  ;  Partridge  v  Stocker,  36  Vt.  108.  7.     If  his  assent  was  not  clearly  shown 

2  Conklin  c.  Doul,  07  III.  355.  to  his  wife's  trade,  tiiere  would  appear 

3  Ibid.  to  have  been  a  pretty  fair  inference, 
*  Jassoy  V.  Delius,  65  111.  4C!);  Jen-  from  the  facts,  that  he  gave  it. 

kins  V.  Flinn,   37  Ind.  349,  and  cases  ^  Ashworih  v.  Outrani,  L.  R.  5  Ch. 

cited;    Dumas   v.   Neal,    51    Ga.   563;  923.     As  to  selling  out  the  good-will, 

Clinton  Man.  Co.  v.  Hummell,  25  N.  J.  see  Re  Peacock's  Trusts,  L.  R.  10  Ch. 

Eq.  45  i  Schoul.  Hus.  &  Wife,  §  307.  D.  490. 

232 


CHAP.  XJI.]  wife's   separate  TRADE.  §  167 

business  are  thus  secured  to  her  sole  and  separate  use.^  She 
is  thus  enabled  to  use  her  separate  property  ;  and  she  may- 
even  enter,  in  some  States,  into  a  general  jjartnership  for 
trade.  In  general,  what  the  wife  acquires  under  these  stat- 
utes is  declared  to  be  exempt  from  liabilit}'  for  the  husband's 
debts,  and  not  subject  to  his  control  or  interference.  But 
the  statutes  of  certain  States  require  the  married  woman  to 
first  register  her  intention,  thus  affording  a  very  reason- 
able safeguard  against  fraud  and  imposition  upon  the  public 
and  herself,  besides  requiring  that  the  act  be  a  deliberate 
one ;  ^  and  the  husband  will  be  held  liable  on  her  contract 
where  the  certificate  is  not  duly  filed.^  In  Kentucky,  special 
authority  to  trade  must  first  have  been  conferred  by  the 
chancellor.'*  Such  requirements  not  being  complied  with, 
the  creditors  of  the  husband  may  come  upon  the  assets  of  the 
business. 

The  wife,  under  such  statutes,  is  found  engaged  on  her 
separate  account,  as  milliner  and  dressmaker,  ^  farmer,® 
boarding-house  keeper,'''  army  sutler,^  operator  of  a  mill,^  sa- 
loon-keeper,^o  tavern-keeper,^^  or  in  whatever  other  business 
she  may  choose  to  carry  on  with  her  own  capital.  Even 
though  the  trade  be  unsuitable  to  her  sex,  fraud  upon  the 
husband's  creditors  will  not  be  conclusively  presumed. ^^  But 
it  is  held  that  the  business  under  such  statutes  should  be 
pursued  as  a  continuing  and  substantial  employment.^^ 

§  167.  Wife's  Trading  Liabilities  under  American  Statutes. — 
Under  these  American  statutes  permissive  of  the  wife's  sepa- 
rate trade,  it  is  a  general  rule  that  the  wife's  contracts  re- 

J  Such  statutes  are  to  be  found  in  5  Jassoy  r.  Delius,  65  111.  469;  Tuttle 

New    York,  Maine,    New    Hampshire,  v.  Hoag,  46  Mo.  38. 

Massacliusetts,     Connecticut,    Kansas,  6  Kouskop  v.  Shontz,  51  Wis.  204; 

New    Jersey,    Iowa,    California,    Wis-  Snow  v.  Shelrlon,  126  Mass.  oo2. 

consin,  Illinois,  Arkansas,  Mississippi,  1  Harnden  v.  Gould,  126  Jlass.  411; 

and  otlier  States.     And  see  Mitchell  v.  Dawes  v.  Rodier,  125  Mass.  421. 

Sawyer,  21  Iowa,  582;  Schoul.  Hus.  &  »  Swasey  v.  Antram,24  Ohio  St.  87. 

Wife,  §  309,  and  appendix.  9  Cooper  v.  Ham,  49  Ind.  303. 

'^  Mass.    Stats.    1862,  c.    198.      See  lo  Nispel  ;.'.  Laparle,  V4  111.  306. 

Schoul.  Hus.  &  Wife,  §  309.  "  Silveus  v.   Porter,  74  Penn.    St. 

3  Feran  v.  Rudolphsen,   106  Mass.  448. 

i71.  12  Guttman  i'.  Scannell,  7  Cal.  455. 

*  Uhrig  V.  Horstman,  8  Bush,  172.  13  Holmes  v.  Holmes,  40  Conn.  117. 

233 


§  168  THE   DOMESTIC   KELATIONS.  [PAET    U. 

garding  her  separate  trade  or  business  are  binding  on  her 
separate  propert}^  and  that  the  husband  is  not  answerable 
for  her  solvency.  With  reference  thereto  she  may  make 
contracts,  and  sue  and  be  sued,  as  if  sole,  except  (as  such 
statutes  usually  run)  that  where  she  is  sued  the  remedy  is 
to  be  enforced  against  her  separate  property  only,  and  not 
against  her  person.  She  may  make  contracts  of  sale,  and  sue 
for  goods  sold  and  delivered  to  her  customers.^  The  power, 
to  do  business  implies,  too,  the  power  to  purchase  goods, 
fixtures,  and  stock  for  it,  and  execute  the  needful  instru- 
ments of  purchase ;  and  hence  the  wife's  contracts  for  such 
purchase  on  credit,  her  notes,  bills,  securities,  or  simple  in- 
debtedness therefor,  must  be  deemed  obligatory  and  enforce- 
able by  suit  or  other wise.^  And  what  she  thus  purchases, 
in  the  exercise  of  her  trading  discretion,  is  to  be  held  and 
treated  as  her  sole  and  separate  property  as  against  her  hus- 
band and  his  creditors.^  Where,  too,  the  married  woman 
keeps  a  separate  bank  account,  with  reference  to  such  busi- 
ness, the  check  which  she  draws  against  it  and  the  fund 
itself  are  available  to  her  business  creditors.^  What  she 
borrows  by  way  of  capital  to  commence  the  business,  she  is 
required  to  refund.^ 

§168.  Wife's  Trade;  Husband's  Participation.  —  It  follows 
that  under  such  legislation  the  husband  is  not  liable  on  the 

1  Porter  I'.Gamba,  43  Cal.  105;  Net-  5  Freckitig  r.  Rolland,  53  N.  Y.  442, 
terville  v.  Barber,  52  Miss.  168 ;  Trieber  As  to  purcbasing  fixtures  of  real  estate 
V.  Stover,  .30  Ark.  727.  Tbe  contracts  for  carrying  on  tlie  business,  see  lb.; 
of  married  women,  made  by  virtue  of  Dayton  v.  Walsh,  47  Wis.  113;  Kous- 
Buch  statute  capacity,  should  not  be  kop  v.  Sliontz,  51  Wis.  204. 

viewed  with  hesitation  or  suspicion  by  On   general   principles,  equity   will 

the  courts,  but  should  be  fully  enforced,  enjoin  a  married  woman  wlio  sells  out 

Netterville  v.  Barber,  .52  Miss.  168.  a  business  and  its  good-will,  which  she 

2  Xispel  V.  Laparle,  74  111.  306 ;  has  carried  on  for  her  separate  account, 
Kouskop  r.  Shontz,  51  Wis.  204 ;  Whea-  from  violating  her  own  agreement  with 
ton  V.  Phillips,!  Beasl.  221;  Reading  the  purchaser  in  restraint  of  future 
V.  Mullen,  31  Cal.  104 ;  Schoul.  Hus.  &  competition  or  interference  ;  for  in 
Wife,  §  .SIO.  this  respect  a  married  woman   should 

"  Tallman  v.  Jones,  13  Kans.  438;  not  be  regarded  more  favorably  than 

Meyers  v.  Ruhte,  40  Wis.  655  ;  Sammis  others  who  dispose  of  their  business  to 

V.  McLaughlin,  35  N.  Y.  647  ;  Silveus  bona  fide  purchasers.     Morgan   v.  Per- 

V.  Porter,  74  Pe^n.  St.  448;  Dayton  v.  hamus,  36  Ohio  St,  517.     And  see  Re 

Walsli,  47  Wis.  113.  Peacock's   Trusts,    L.   R.    10   Ch.   D. 

4  Nash  V.  Mitchell,  15  N.  Y.  471.  490. 

2-34 


CHAP.  XII.]  wife's   separate   TRADE.  §  168 

wife's  contracts  and  liabilities  incurred  in  the  pursuit  of  her 
separate  business,  unless  he  participates  in  it.^  But  his  par- 
ticipation will  not  unfrequently  be  found  in  the  modern  cases; 
and  hence  arises  legal  uncertainty,  and  often  a  suspicion  of 
fraudulent  arrangements  against  one  another's  creditors.  Does 
the  proof,  we  must  ask,  under  any  such  circumstances,  show 
that  the  wife  carried  on  no  separate  trade,  but  was  her  hus- 
band's agent?  or  that  she  did,  and  the  husband  was  her 
agent  ?  or  that  they  were  in  partnership  together  ? 

In  Massachusetts,  where  the  statutory  doctrine  of  the  wife's 
power  to  trade  and  acquire  separate  earnings  has  already  re- 
ceived a  considerable  exposition  in  the  courts,  it  is  lield  that 
where  a  married  woman  carries  on  the  business  of  keeping 
boarders  on  her  sole  and  separate  account,  and  has  purchased 
goods  to  be  used  in  her  business  on  her  sole  credit,  she  alone 
is  liable,  although  her  husband  lived  with  her  when  the 
goods  were  purchased  ;  and  her  own  acts  and  admissions  in 
reference  to  the  business  are  competent  evidence  against 
her.2  In  Maine  the  husband  cannot  be  sued  for  goods  and 
chattels  furnished  his  wife  by  third  persons  in  the  course  of 
her  business,  even  though  such  purchases  were  made  by  her 
with  his  knowledge  and  consent,  and  although  she  appropri- 
ated part  of  the  proceeds  to  the  support  of  her  husband  and 
family.^  But  where  the  purchase  and  sales  are  made  with 
the  husband's  knowledge  and  consent,  and  he  participates  in 
the  profits  of  the  business,  knowing  them  to  be  such,  and 
that  she  professed  to  act  for  him,  it  may  be  inferred  in  gen- 
eral that  the  purchases  were  made  on  the  husband's  credit.* 
Where  the  separate  business,  however,  is  carried  on  against 
the  husband's  consent  and  without  his  concurrence,  he  assur- 
edly is  not  liable.^ 

1  Parker  v.  Simonds,  1  Allen,  258;         8  Colby  v.  Lamson,39  Me.  119. 
Colby  V.  Lamson,  .3!)  Me.  119  ;  Trieber  *  Oxnard  v.  Swanton,  .39  Me.  12-5. 

V.  Stover,  30  Ark.  727;  Tuttle  v.  Hoag,  &  Tuttle  v.  Hong,  46  Mo.  38;  Jen- 

46  Mo.  .38.  kins  v.  Flinn,  .37  Ind.  349.     See  Smith 

2  Parker  v.  Simonds,  1  Allen,  258.  v.  Thompson,  36  Conn.  107,  where  the 
As  to  husband's  liability  on  a  lease,  married  woman  had  no  power  to  trade 
though    professing   to   underlet    for  a  as  a,  feme  sole. 

wife's  business,  see  Knowles  v.  Hull, 
99  Mass.  562. 

235 


168 


THE   DOMESTIC   EELATIONS. 


[part  n. 


In  New  York,  as  against  her  husband's  creditors,  the  wife 
may  make  him  managing  agent,  and  let  him  conduct  the 
business  in  her  name,  while  she  furnishes  the  capital  from  her 
own  means  and  takes  the  profits  to  herself ;  paying  the  man- 
aging agent  what  she  thinks  best,  without  subjecting  the 
stock  in  trade  to  his  debts.^ 

Where  a  married  woman  manages  a  separate  trade  or  busi- 
ness by  agents,  the  usual  doctrine  of  agency  must  apply. 
The  wife  cannot  avoid  the  usual  liabilities  on  the  plea  that 
she  made  her  husband  her  agent.^  The  scope  of  the  agency, 
too,  must  be  considered  as  in  other  cases,  and  the  agency,  as 
actually  conferred,  is  not  the  full  test  of  responsibility  for  the 
agent's  dealings  with  third  parties  ;  for  those  clothed  with  ap- 
parent authority  may  bind  their  principals  as  though  really 
authorized.^  In  short,  married  women,  as  it  is  well  observed, 
to  the  extent  and  in  the  matters  of  business  in  which  they  are 


1  Buckley  v .  Wells,  33  N.  Y.  518. 
And  see  Sherman  v.  Elder,  24  N.  Y.  381 ; 
Barton  v.  Beer,  35  Barb.  78  ;  Abbey  v. 
Deyo,  44  N.  Y.  343 ;  Hamilton  v.  Doug- 
las, 46  N.  Y.  318  ;  Sclioul.  Has.  &  Wife, 
§  314.  All  purchases  or  contracts  of 
purchase  for  commencing  or  prosecut- 
ing the  wife's  separate  business  must 
have  been  made  in  good  faith,  and  not 
as  a  means  of  fraudulently  placing  the 
husband's  property  beyond  the  reach 
of  his  creditors.  Dayton  v.  Walsh,  47 
Wis.  113.  But  the  employment  of  her 
husband  in  carrying  on  her  separate 
business  of  farming  does  not  make  liira 
the  wife's  agent  in  the  business,  unless 
he  contributed  money  or  services  as 
partner,  lb. ;  nor  liis  employment  as 
salesman  in  the  wife's  store,  Ploss  v. 
Thomas,  6  Mo.  App.  157;  or  as  ope- 
rative or  manager  in  his  wife's  mill. 
Cooper  r.  Ham,  49  Ind.  393.  Proof 
that  a  husband  signed  notes  for  goods 
in  a  shop  leased  to  him  is  not  conclu- 
sive proof  that  the  goods  did  not  be- 
long to  the  wife's  separate  business: 
Mason  u.  Bowles,  117  Mass.  86;  for  a 
husband  might  sign  as  an  agent  and 
render  her  business   liable.     Freiberg 

236 


V.  Branigan,  18  Hun,  344.  But  as  to  a 
judgment  rendered  against  tlie  agent 
himself,  see  Smiley  v.  Meyer,  55  Miss. 
555. 

But  transactions  which  are  tainted 
with  fraud  upon  the  rights  of  creditors 
and  others  must  not  be  permitted  to 
stand.  Capital  placed  by  a  wife  in  her 
husband's  hands,  and  by  him  so  em- 
barked in  business  with  her  assent 
that  credit  is  obtained  upon  it,  is  not, 
with  the  increase,  the  wife's  separate 
property  as  against  his  creditors  who 
have  trusted  accordingly,  but  rather 
his  property.  Patton  v.  Gates,  67  111. 
164;  Kouskop  v.  Shontz,  51  Wis.  204. 
Or  possibly  like  that  of  a  firm  in  which 
both  were  partners.  See  §  169,  post. 
A  change  in  the  mutual  relations  of 
the  spouses  regarding  the  business 
ought,  on  the  usual  principles  of  both 
agency  and  partnership,  to  be  brought 
home  to  the  knowledge  of  creditors 
with  whom  business  relations  continue 
uninterrupted.  Bodine  v.  Killeen,  53 
N.  Y.  93. 

2  Porter  v.  Gamba,  43  Cal.  105. 

3  Bodine  v.  Killeen,  53  N.  Y.  93. 


CHAP.  XII.]  wife's   separate   TRADE.  §  169 

by  law  permitted  to  engage,  owe  the  same  duty  to  those  with 
whom  they  deal,  and  to  the  puVjlic,  and  may  be  bound  in  tlie 
same  manner  as  if  they  were  unmarried.  To  the  extent  of  their 
enlarged  capacity  to  transact  business  as  conferred  by  stat- 
ute, they  may  be  estopped  by  their  acts  and  declarations,  and 
made  subject  to  all  the  presumptions  which  the  law  indulges 
against  the  other  sex.^  And  while,  in  general,  the  husband's 
gift  may  sustain  the  wife's  claim  of  profits  accruing  from  her 
separate  trade  ;  yet  the  better  opinion  is,  upon  either  equity 
or  statute  consideration,  that  a  business  carried  on  by  a  hus- 
band and  wife  in  co-operation,  his  labor  and  skill  uniting  with 
hers,  must  be  considered  as  his  business  so  far  as  his  creditors 
are  concerned,  and  fail  accordingly  of  protection  for  her  espe- 
cial benefit; 2  though  it  might,  perhaps,  be  well  ruled  in  some 
States,  that  there  is  a  partnership  whose  liabilities  should  be 
adjusted  on  partnership  principles;  highly  objectionable  as  the 
jurist  may  well  regard  all  such  partnerships  upon  principle. 

§  169.  Wife  as  Copartner  with  Husband  or  Others.  —  As  to  all 
agencies  and  all  partnerships,  one  rule  may  appl}^  in  adjusting 
rights  as  between  themselves,  and  another  as  to  creditors 
whose  confidence  has  been  invited.  And,  on  the  whole,  it 
would  still  appear  to  be  the  general  rule,  notwithstanding  the 
late  statutes,  that  a  wife  ma}^  not,  as  against  the  world,  be- 
come her  husband's  partner,  nor  even  join  her  labor  and  capi- 
tal to  his  in  one  and  the  same  business  enterprise.^  In  Mas- 
sachusetts, while  the  statute  permitted  the  wife  to  form  a 
copartnership  with  third  parties,  this  exception  the  court  so 
strictly  enforced,  as  to  hold  her  transactions  as  a  member  of 
any  firm  in  which  her  husband  was  interested  as  a  partner 
utterly  void,  whether  to  her  advantage  or  injury,  inasmuch 
as  a  married  woman  cannot  legally  contract  with  her  husband 
singly  or  jointly .*     But  under  the  New  York  statutes  it  is 

1  Bodine  v.  Killeen,  53  N.  Y.  93 ;  head,  17  Gratt.  503 ;  Partridge  v. 
Parshall  y.  Fisher,  43  Mich.  529 ;  Leland  Stocker,  36  Vt.  108;  Schoul.  Hus.  & 
V.  CoUver,  34  Mich.  418.  Wife,  §§  303,  315. 

2  See  National  Bank  v.  Sprague,  5  3  Wilson  v.  Loomis,  55  III.  352; 
C.  E.  Green,  13;  Oxnard  v.  Swanton,  Montgomery  j;.  Sprankle,  31  Ind.  113; 
39  Me.  125  ;  Cramer  v.  Keford,  2  C.  E.  Lord  v.  Parker,  3  Allen,  127. 

Green,  883.     But  see  Penn  v.  White-         *  Lord  v.  Parker,  8  Allen,  127 ;  Ed. 

237 


§  169  THE   DOMESTIC   EELATIONS.  [PART  U. 

held  that  a  husband  and  wife  may  not  only  enter  into  a  valid 
partnership  together  for  business,  but  carry  it  on  under  the 
name  "  A.  &  Co."  (the  "  Co."  representing  the  wife)  with- 
out violating  the  law  which  forbids  persons  to  transact  busi- 
ness under  fictitious  names ;  and  that  hence  they  can  sue  and 
recover  in  their  joint  names  for  goods  sold  and  delivered  by 
their  firm.^ 

By  the  wife's  business  copartnership  Avith  third  persons, 
and  particularly  with  those  of  the  opposite  sex  apart  from 
her  husband,  she  entangles  her  separate  property  disadvan- 
tageously,  and  incurs  the  risk  of  personal  affiliations,  besides, 
quite  perilous  to  domestic  concord  and  the  mutual  confidence 
which  marriage  demands.  In  Massachusetts  the  legislature 
permitted  a  married  woman  to  form  a  copartnership  in  busi- 
ness with  third  parties,  though  not  with  her  husband;  but, 
•  after  some  ten  years'  experience,  repealed,  in  1874,  that  per- 
mission.2  Most  other  States  deny  lier  such  a  right  as  sepa- 
rate and  exclusive  of  her  husband's  interest;-'^  though  in 
some  parts  of  the  Union  such  copartnerships  are  sustained,* 
and  she  is  not  unfrequently  found  connected  with  business 
firms  as  a  partner  in  place  of  her  deceased  husband  ;  "  some- 
times, too,  he  is  her  successor,  or  else  participates  with  her 
and  third  persons  in  the  concern.^ 

Where  a  married  woman  enters  legally  into  a  copartner- 
ship, she  becomes  personally  liable,  to  the  extent  of  her 
separate  property,  for  the  partnership  debts,  like  an}^  other 
partner."  But  our  latest  decisions  tend  to  protect  the  wife 
against  copartnership  liabilities.^ 

wards  y.  Stevens,  3  Allen,  315;  Plumer  381;  Bradstreet  v.  Baer,  41   Md.  19; 

V.  Lord,  7  Allen,  481.  Howard  v.  Stephens,  52  Miss.  239. 

1  Zimmerman  v.  Erhard,  8  Daly,  *  See  Newman  v.  Morris,  52  Miss. 
311.    And  so  as  to  other  States.    See /?e  402. 

Kinkead,  .3  Biss.  405  :  Schoul.  Hus.  &  ^  Preusser  v.  Henshaw,  49  Iowa,  41. 

Wife,   §  316;   Camden   v.    Mullen,   29  ^  Bitter  r.  Ratliman,  61  N.  Y.  512; 

Cal.  564;  Readinpf  r.  Mullen,  31  Cal.  Swasey  v.  Antram,  24  Ohio  St.  87. 

104  ;  Atwood  v.  Meredith,  37  Miss.  635 ;  ^  Preusser  v.  Henshaw,  49  Iowa,  41 ; 

Oglesby  >•.  Hall,  .30  Ga.  386.  Newman  r.  Morris,  52  Miss.  402. 

2  Todd  .  Clapp,  118  Mass.  495.  8  See  Swasey  ?'.  Antram,  24  Ohio  St. 
Such  a  law,  not  being  interpreted  re-  87;  Parshall  v.  Fisher,  43  Mich.  529; 
troactively,  was  held  con.stitutional.   Jb.  Bitter    v.   Rathman,    61    N.    Y.    512; 

3  See  Bradford  v.  Johnson,  44  Tex.  Schoul.  Hus.  &  Wife,  §  318.     See,  as  to 

238 


CHAP.  XI[.]  wife's   separate   TEADE. 


§170 


§    170.    Civil-Law    Doctrine     of    Separate     Trade. —  By    the 

Civil  Code  of  France,  the  wife  may  carry  on  a  trade  inde- 
pendently of  her  husband.^  So  the  wife  may  be  a  separate 
trader  under  the  custom  of  Paris.^  And  a  similar  right  is 
recognized  by  the  laws  of  Spain  and  other  European  coun- 
tries.^ From  the  civil,  rather  than  the  common  law,  are  de- 
rived those  property  rights  of  married  women  which  are 
recognized  in  Louisiana,  California,  and  others  of  the  South- 
western States,  originally  colonized  by  the  Spanish  and 
French.  Thus  the  Louisiana  Code  recognizes  the  capacity 
of  the  wife  to  carry  on  separate  trade,  or,  as  it  is  said,  to 
constitute  herself  a  public  merchant,  provided  she  act  bona 
fide  and  have  an  active  agency  in  the  concern.* 


enforcing  trading  liabilities  against  a 
wife,  Schoul.  Hus.  &  Wife,  §§  319,  320. 

1  Code  Civil,  art.  220;  1  Burge  Col. 
&  For.  Laws,  219. 

2  1  Burge  Col.  &  For.  Laws,  218. 

3  76.  220,  420,  698. 

*  La.  Code,  art.  128 ;  Christensen  v. 
Stumpf.  16  La.  Ann.  50.  And  see 
Camden  v.  Mullen,  29  Cal.  564;  Head- 
ing u.  Mullen,  31  Cal.  101 ;  Community 
Doctrine,  supi-a,  §  7. 

How  great  the  cliange  which  modern 
equity  and  legislation  have  wrought, 
and  modern  legislation  especially,  in 
marital  rights  and  duties  as  defined  by 
the  common  law,  will  further  appear 
from  the  miscellaneous  changes  noticed 
in  Schoul.  Hus.  &  Wife,  §§  .321-83.3, 
which  see  passim,  also  Appendix,  with 
analysis  of  latest  married  women's  acts. 
These  changes,  which  concern  con- 
tracts, torts,  propert}-  of  the  wife,  and 
suits  by  or  against  her,  may  be  specified 
as  chiefly  relating:  (1)  to  tlie  wife's  an- 
tenuptial debts  ;  (2)  to  tlie  wife's  gen- 
eral disabilitj' to  contract;  (3)  to  the 
necessaries  of  wife  and  family;  (4)  to 
torts  committed  by  the  wife  ;  (5)  to  torts 
committed  upon  the  wife  ;  (6)  to  torts 
or  crimes  committed  by  one  spouse  and 
afTecting  the  other  ;  (7)  to  the  wife's 
property;  (8)  to  actions  by  a  married 
woman,  her  arbitration,  &c. 

To  attempt  a  minute  analysis  of  the 


married  women's  acts  would  require 
more  space  than  our  plan  will  permit. 
Nor  would  it  profit  the  reader.  The  id- 
dependent  legislation  of  some  thirty 
distinct  communities,  without  uniform- 
ity of  plan  or  principle,  involving,  as  it 
does,  the  most  interesting  and  yet  the 
most  perplexing  of  social  problems, 
must  necessarily  produce  results  which 
cannot  be  reconciled.  It  is  too  early 
j'et  to  generalize  from  the  decisions. 
Even  though  the  hand  of  innovation 
should  be  staj-ed  for  a  while,  and  pub- 
lic attention  centre  in  the  work  of 
blending  these  results  into  harmony,  it 
would  be  many  years  before  our  courts, 
applying  local  codes  and  the  traditions 
of  tlie  English  common  law  and  equity 
jurisprudence  to  the  discordant  mass  of 
material  before  them,  could  hope  to  set 
up  a  consistent  and  thorough  American 
system.  As  one  of  our  own  jurists 
well  remarks,  wherever  tlie  line  may 
be  drawn,  it  will  be  long  before  the 
public  will  understand  and  recognize 
the  point  where  the  power  of  a  married 
woman  to  bind  herself  by  her  bargains 
ceases,  and  frauds  upon  tlie  thoughtless 
and  inconsiderate  must  often  occur. 
Per  Bell,  C.  J.,  in  Ames  v.  Foster,  42 
N.  H.  381.  The  ultimate  scope  of  all 
this  legislation  must,  however,  be 
either,  regarding  the  wife  as  peculiarly 
exposed  to  coercion  and  subtle  influ- 

239 


172  THE  DOMESTIC  RELATIONS.  [PART  H. 


CHAPTER  XIII. 

ANTENUPTIAL   SETTLEMENTS. 

§  171.  Nature  of  Marriage  Settlements. —  Settlements  are  a 
useful  contrivance  for  preserving  estates  intact  in  a  family. 
As  between  husband  and  wife  the  word  "  settlement "  is 
applied  to  their  mutual  contracts  in  reference  to  the  property 
of  one  another,  by  means  of  which,  under  the  protection 
of  courts  of  equity  (which  favor,  as  did  also  the  civil 
law,  arrangements  in  recognition  of  property  in  the  wife  as 
well  as  the  husband),  they  change  and  control  the  general 
rules  of  the  marriage  state.  They  cannot  vary  the  terms 
of  the  conjugal  relation  itself;  they  cannot  add  to  or  take 
from  the  personal  rights  and  duties  of  husband  and  wife  ; 
but  they  may  essentially  alter  the  interest  which  each  takes 
in  the  property  of  the  other,  if  they  choose  to  enter  into 
special  stipulations  for  that  purpose.  These  special  stipula- 
tions may  be  either  antenuptial  or  postnuptial  ;  while,  as  we 
shall  soon  perceive,  the  two  classes  are  more  alike  in  name 
than  substance,  and  the  term  "  marriage  settlements  "  is  fre- 
quently applied  to  antenuptial  settlements  only. 

§  172.  Distinguished  from  Promises  to  Marry  under  Statute 
of  Frauds.  —  A  distinction  meets  us  at  the  outset  between 
promises  to  marry  and  promises  in  consideration  of  marriage. 
The  Statute  of  Frauds,  §  4,  requires  that  promises  and  agree- 
ments in  consideration  of  marriage  shall  be  "  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other 

ence,   if  not  mastery  by  main  force  ist  in  a  state  of  nature,  but  her  disabili- 

from  the  natural  necessities  of  her  po-  ties  have  been  rather  created  by  muni- 

sition  in  tiie  conjugal  partnersliip,  if  not  cipal  law,  and  enforced  by  tyrannical 

the  weakness  of  her  sex,  to  afford  that  men,  to  treat  her  as  sui  juris,  and  make 

legal  protection  and  shelter  which  she  her  bear  the  full  responsibility  of  her 

has  always  claimed,  and  which  our  law  own  legal  engagements,  be   they  pru- 

in   a  strait  could  never  deny  her ;  or  dent  or  foolish,  like  one  discovert. 
else,  as  though  no  such  necessities  ex- 

240 


CHAP.  XIII.]         ANTENUPTIAL   SETTLEMENTS.  §  173 

person  thereunto  by  him  lawfully  authorized."  Yet  a  prom- 
ise to  marry  is  binding,  although  verbal.^  It  would  strike 
any  one  (except  perhaps  a  lawyer)  that  a  promise  by  a  woman 
to  marry  a  man  in  consideration  of  his  promising  to  marry 
her  was  an  agreement  made  in  consideration  of  marriage,  but 
it  is  not.'^  Perhaps  it  is  public  policy  which  sustains  the  latter 
rather  than  the  former  contract  without  requiring  a  writing. 
Perhaps,  too,  this  carries  weight :  that  a  promise  to  marry  is 
merely  a  promise  to  enter  into  a  certain  relation,  and  there- 
fore clearly  interpreted  by  any  court  without,  the  aid  of  writ- 
ten evidence,  provided  the  promise  be  once  proved  ;  while 
the  Statute  of  Frauds  is  found  most  convenient  for  clearly 
fixing  mutual  stipulations  which  might  be  varied  in  a  thou- 
sand ways,  and  affect  the  property  rights  of  the  contracting 
parties  accordingly.  At  all  events,  a  promise  to  marry, 
whether  verbal  or  written,  affords  a  singular  remed}^  for  breach, 
one  quite  different  from  the  remedies  attending  marriage 
settlements :  namely,  no  right  of  specific  performance,  but 
always  dan)ages  to  the  injured  party. 

§  173.  Marriage  the  Consideration  "which  supports  Antenup- 
tial Settlements.  —  In  antenuptial  marriage  settlements,  or 
what  are  called  "  marriage  settlements,"  the  marriage  affords 
a  sufficient  consideration.  Hence  a  man  cannot  set  aside  an 
agreement  in  contemplation  of  marriage,  on  the  plea  that  his 
wife's  fortune  fell  short  of  his  expectations ;  for,  as  Lord 
Hardwicke  observed,  it  would  be  extremely  mischievous  to 
set  aside  marriage  settlements  upon  such  grounds.^  It  is  the 
consideration  of  marriage,  not  the  consideration  of  a  corre- 
sponding fortune,  which  runs  through  the  whole  settlement 
or  agreement,  and  supports  every  part  of  it,  thus  making 
marriage  not  only  a  high,  but  the  highest  consideration  in 
fact  known  to  the  law.^ 

In  this  country  the  validity  of  marriage  settlements  is  gen- 
erally recognized ;  and  it  is  well  understood  that  almost  any 

1  Macq.  Hus.  &  Wife,  220  ;  Cook  v.         3  Ex  parte  Marsh,  1  Atk.  159. 
Baker,  1  Stra.  34;  Harrison  v.  Cage,  1         *  Ford  t'.  Stuart,  15  Beav.  499;  Nairn 
Ld.  Raym.  386  ;  Schoul.  Hus.  &  Wife,  v.  Prouse,  6  Ves.  762 ;   Peachey  Mar. 
§  44.  Settl.  56. 

2  See  Smitli  on  Contracts,  57. 

16  241 


§  174  THE   DOMESTIC   RELATIONS.  [PART   II. 

bona  fide  and  reasonable  agreement,  made  before  marriage,  to 
secure  the  wife  either  in  the  enjoyment  of  her  own  property 
or  a  portion  of  that  of  her  husband,  whether  during  coverture 
or  after  his  death,  will  be  carried  into  execution  in  chancery.^ 
"  These  marriage  settlements,"  observes  Chancellor  Kent, 
"  are  benignly  intended  to  secure  to  the  wife  a  certain  sup- 
port in  every  event,  and  to  guard  her  against  being  over- 
whelmed by  the  misfortunes  or  unhindness  or  vices  of  her 
husband.  They  usually  proceed  from  the  prudence  and  fore- 
sight of  friends,  or  the  warm  and  anxious  affection  of  parents  ; 
and,  if  fairly  made,  they  ought  to  be  supported  according  to 
the  true  intent  and  meaning  of  the  instrument  by  which  they 
are  created."  ^  And  marriage  is  of  itself  pronounced  in  the 
supreme  court  of  this  land  to  be  not  only  a  valuable  consider- 
ation to  support  a  marriage  settlement,  "but  a  consideration 
of  the  highest  value."  ^ 

§  174.  How  far  this  Support  extends.  —  But  this  rule  must 
be  taken  with  some  caution.  The  marriage  consideration 
supports  every  provision  with  regard  to  the  husband,  the 
wife,  and  the  issue.  As  for  marriage  itself,  the  marriage  of 
persons  formerly  in  loose  cohabitation  furnishes  good  con- 
sideration ;*  and  even  perhaps  a  void  or  illegal  marriage,  pro- 
vided that  marriage  was  contracted  with  honest  conjugal 
intent,  and  particularly  where  the  question  affects  only  their 
respective  interests. °  The  consideration  is  held  also  to  extend 
to  stepchildren  by  a  former  marriage.^     It  does  not,  however, 


1  Stilley  V.  Folger,  14   Ohio,  610 ;  2  2  Kent  Com.  165. 

2   Kent  Com.  163 ;   2  U.    S.  Eq.  Dig.  3  Pgr  Story,  J.,  Magniac  v.  Thomp- 

Hus.  &  Wife,  22-30;  English  v.  Foxall,  son,  7  Pet.  348.     And  see  Armfield  v. 

2  Pet.  595  ;  Hunter  v.  Bryant,  2  Wheat.  Armfield,  1  Freem.  Cli.  311. 

32 ;   Tarbell  v.  Tarbell,  10  Allen,  278  ;  *  Herring    v.   Wickham,    29    Gratt. 

Skillman   v.    Skillman,    2    Beasl.   403;  628. 

Cartledge  I'.  Ciitliff,  29  Ga.  758 ;  Albert  ^  Even  in  England,  upon  lapse  of 

V.  Winn,  5  Md.  66 ;  Snyder  v.   Webb,  time,  a  settlement  deed  was  allowed  to 

3  Cal.  83;  Smith  v.  Chappell,  31  Conn,  stand  where  a  widower  had  married  his 
589.  deceased  wife's  sister.     Ayers  v.  Jen- 

An  estate  may  be  limited  to  an  un-  kins,  L.  R.  16  Eq.  275. 

married   woman's    separate   use,  even  6  Michael    v.    Morey,   26   Md.  239; 

where  no  particular  marriage  is  con-  Gale  v.  Gale,  6  Ch.   D.  144 ;  Vason  v. 

templated.     Schoul.    Hus.    &   Wife,  §  Bell,  53  Ga.  516.     But  see  Price  r.  Jen- 

198  ;  Hayraond  v.  Jones,  33  Gratt.  317.  kins,  4  Ch.  D.  483.  Cf.  Ardis  v.  Printup, 

242 


CHAP.  Xin.]         ANTENUPTIAL   SETTLEMENTS. 


§m 


always  extend  to  collaterals,^  though  Sir  Matthew  Hale  and 
others  held  formerly  that  it  would,  maintaining  that  the  in- 
fluence of  the  marriage  consideration  extended  to  purchasers 
generally .2  Nor  are  covenants  in  favor  of  strangers  sup- 
ported by  the  marriage  consideration  unless  specially  pro- 
vided for.^ 

The  consideration  of  marriage  will  support  a  settlement 
against  creditors,  even  prior  ones  ;  this,  too,  it  would  appear, 
though  the.  parties  both  knew  of  the  husband's  indebtedness, 
so  long  as  the  provisions  of  the  settlement  are  not  grossly  out 
of  proportion  to  his  station  and  circumstances  ;  *  and  so,  too, 
where  the  party  to  be  benefited  thereby  was  implicated  in 
no  fraud  upon  the  other's  creditors,  even  though  that  provi- 
sion be  unreasonably  large.^  But  if  it  appear  that  the  cele- 
bration of  marriage  is  part  of  a  scheme  between  the  marrying 
parties  to  defraud  and  delay  creditors,  such  settlement  will 
not  be  allowed  to  protect  the  property  against  just  claims  of 
the   latter.^     Where  fraud  has   been  committed  b}^  husband 


39  Ga.  648,  with  Wollaston  v.  Tribe, 
L.  R.  9  Eq.  44,  as  to  children  of  a  fu- 
ture marriage. 

1  Peachey  Mar.  Settl.  58,  60,  and 
cases  cited ;  Davenport  v.  Bisliop,  1 
Phil.  701 ;  Barham  v.  Earl  of  Claren- 
don, 10  Hare,  13.3  ;  Ford  v.  Stuart,  15 
Beav.  505  ;  Cotterell  v.  Homer,  13  Sim. 
506 ;  Wollaston  v.  Tribe,  L.  R.  9  Eq. 
44. 

2  Jenkins  v.  Kerais,  1  Ch.  Cas.  103 ; 
1  Lev.  152. 

3  Sutton  V.  Chetwynd,  3  Mer.  249, 
per  Sir  Wm.  Grant ;  Sugdcn  Law  Prop. 
153;  Peachey  Mar.  Settl.  61. 

*  Campion  v.  Cotton,  17  Ves.  272  ; 
Ex  parte  McBurnie,  1  De  G.  M.  &  G. 
446;  Ramsay  v.  Richardson,  Riley  Ch. 
271  ;  Armfield  v.  Armfield,  1  Freem. 
Cli.  311  ;  Jones's  Appeal,  62  Penn.  St. 
824  ;  Brunnel  v.  Witherow,  29  Ind.  123  ; 
Barrow  v.  Barrow,  2  Dick.  504  ;  Coch- 
ran V.  McBeath,  1  Del.  Ch.  187  ;  Credle 
V.  Carrawan,  44  N.  C.  422. 

^  Collaterals  are  favorably  regarded 
in  Neves  v.  Scott,  9  How.  (U.  S.)  196  ; 
ih.  13  How.  268  i  Schoul.  Hus.  &  Wife, 


§  349,  and  cases  cited.  Where  no 
fraud  upon  the  iiusband's  creditors  can 
be  cliarged  on  the  woman,  she  may 
hold  as  a  purchaser  for  value  against 
tlie  husband's  prior  creditors,  even 
tliough  the  settlement  upon  lier  em- 
braced tlie  Iiusband's  whole  estate,  and 
the  marrying  parties  iiad  been  cohabit- 
ing wliile  single,  and  had  illegitimate 
children.  Herring  v.  Wickliara,  29 
Gratt.  628.  Tiiis  is  an  extreme  case, 
and  perhaps  some  other  States  would 
not  extend  the  rule  so  far.  But  it  finds 
strong  support  from  the  Supreme  Court 
of  the  United  States  in  a  case  decided 
in  1881,  which  upheld  tlie  settlement 
of  a  large  amount  of  real  estate,  in  con- 
sideration of  marriage,  by  an  insolvent 
debtor  upon  the  woman  wiio  accepted 
him,  notwithstanding  the  latter  knew 
he  was  financially  embarrassed.  Prewit 
V.  Wilson,  103  U.  S.  Supr.  22.  See 
comments,  Schoul.  Hus.  &  Wife,  §  349. 
And  see  Kevan  v.  Crawford,  6  Ch.  D. 
29. 

s  Columbine  v.  Penhall,   1   Sm.   & 
Gif.  228;  Goldsmith  v.  Russell,  5  De  G. 

243 


§  175  THE   DOMESTIC   RELATIONS.  [PART  H. 

and  wife  in  reference  to  property  embraced  in  the  terms  of  a 
settlement,  the  rights  of  a  creditor  witli  insufficient  notice 
are  sometimes  upheld  as  against  themselves;  and  a  wife's 
settlement  of  her  own  property  has  been  so  far  set  aside  as 
to  secure  payment  of  her  antenuptial  debt  to  the  creditor.^ 

§  173.  Settlement  Good  in  Pursuance  of  Written  Agreement. 
—  If  an  agreement  be  made  in  writing  before  marriage,  for 
the  settlement  of  an  estate,  the  settlement,  although  made 
after  marriage,  will  be  deemed  valuable.^  This  is  a  well- 
settled  rule,  and  should  be  constantly  borne  in  mind. 

There  are  dicta  to  the  effect  that  a  settlement  after  mar- 
riage, reciting  a  parol  agreement  before  marriage,  is  not 
fraudulent  against  creditors,  provided  the  agreement  had 
actual  existence ;  but  this  point  has  never  been  distinctly 
decided  in  England ;  and  some  late  authorities  appear  to 
doubt  its  correctness.^  The  payment  of  money  would,  how- 
ever, make  a  good  consideration  for  such  a  settlement  as 
against  subsequent  creditors.^  The  language  of  the  Statute 
of  Frauds  has  a  material  bearing  upon  all  such  cases.  Yet 
very  informal  agreements  are  often  sustained,  rather  on  lib- 
eral than  technical  construction,  the  court  taking  into  con- 
sideration the  fact  that  marriage  had  taken  place,  or  other 
acts  been  performed,  on  the  strength  of  the  promise.^  The 
disposition  of  equity  courts  in  the  United  States  is  favorable 
to  settlements  after  marriage  in  pursuance  of  some  informal 
prior  agreement,  particularly  as  relates  to  personal  property 
and  as  between   the  spouses   themselves.     Other  considera- 

M.  &  G.  000  ;  Peachey  Mar.  Settl.  63 ;  &  Purch.  13th  ed.  590 ;  Macq.  Hus.  & 

Simpson  v.  Graves,  Riley  Ch.  232.  Wife,  257. 

1  Sharpe   v.  Foy,  L.  R.  4  Ch.  35 ;         3  gee  Peachey  Mar.  Settl.  63 ;  Las- 
Smith  V.   Chirrell,   L.  R.    4  Eq.   390  ;  sence  v.  Tierney,  1  Mac.   &  Gor.  571 
Clmbb  i:    Stretch,   L.   R.  9  Eq.    555  ;  Warden  v.  Jones,  5  W.  R.  447.     And 
Obermayer  v.  Greenleaf,  42  Mo.  304 ;  see   Babcock   v.   Smith,   22   Pick.   Gl 
Brame  v.  McGee,  46  Ala.  170.  Simpson  v.  Graves,  Riley  Ch.  232. 

-  Reade  v.  Livingston,  3  Johns.  Ch.  •*  Stillman  v.  Ashdown,  2  Atk.  478 

481 ;  Finch  v.  Finch,  10  Ohio   St.  501  ;  Brown  r.  Jones,  1  Atk.   189.     And  see 

Izard  V.  Izard,  1  Bailey  Ch.  228 ;  David-  Butterfield  v.  Heath,  15  Beav.  414. 
son  V.  Graves,  Riley  Ch.  219  ;  Satter-  ^  See   Livingston   v.   Livingston,   2 

thwaite   v.  Emiey,  3   Green    Ch.  489;  Johns.  Ch.481  ;  Resor  v.  Resor,  9  Ind. 

Rogers    i'.    Brightman,    10    Wis.    55;  347;   Brooks  r.  Dent,  1  Md.  Ch.  523; 

Peachey  Mar.  Settl.  63  ;  Sugd.  Vend.  West  v.  Howard,  20  Conn.  581. 

244 


CHAP.  XIII.]         ANTENUPTIAL    SETTLEMENTS.  §  177 

tions,  sucli  as  forbearance  to  sue,  or  the  fulfilment,  in  return, 
of  terms  prejudicial,  might  intervene.^  A  mere  oral  agree- 
ment between  the  intended  husband  and  wife,  followed  by 
marriage  and  a  continued  recognition  by  acts,  especially  in 
connection  with  such  other  consideration,  is  held  sufficient 
for  the  wife's  favor  in  some  late  American  cases,  as  between 
the  parties  and  those  claiming  under  them.^ 

§  176.  Form  of  Antenuptial  Settlements.  —  With  respect  tO 
the  form  of  marriage  settlements  it  maybe  generally  observed 
that  equity  pays  no  regard  to  the  externals,  but  considers 
only  the  substantial  intention  of  the  parties ;  and  hence  arti- 
cles or  an  agreement  will  be  binding  between  husband  and 
wife  without  the  intervention  of  trustees  ;  for  here  the  hus- 
band himself  may  be  bound  to  act  as  trustee.^  And  lience 
the  signature  of  the  wife  to  an  instrument  or  an  indenture 
deed  is  by  no  means  indispensable  in  order  that  her  rights 
upon  marriage  consideration  be  sustained.* 

§  177.  Marriage  Articles.  —  In  this  connection  the  use  of 
the   term  "  marriage    articles"    is    properly   to    be    noticed. 

1  Riley  v.  Riley,  25  Conn.  154  ;  Brad-  480.  Even  in  law  a  bond,  with  conditions 
ley  V.  Saddler,  54  Ga.  681.  See,  as  to  properly  expressed,  may  be  enforced 
the  like  English  practice,  Peachey  Mar.  against  the  husband  to  tiie  extent  of 
Settl.  74,  87;  Macq.  Hus.  &  Wife,  234  ;  tiie  penalty  therein  named  ;  yet  equity, 
Hamniersley  v.  De  Biel,  12  CI.  &  Fin.  regarding  the  contract  as  one  for  spe- 
45;  Lassence  r.  Tierney,  1  Mac.  &  Cor.  cific  performance,  will  not  confine  the 
671.  The  numerous  dicta  in  all  sucii  remedy  of  the  injured  party  to  the 
cases  serve  rather  to  obscure  than  illus-  penal  sum  named  in  tlie  bond  ;  but, 
trate  the  principle.  enforcing   the   real   obligations  of  the 

2  See  Schoul.  Hus.  &  Wife,  §  350,  bond,  will  give,  if  need  be,  thirty  times 
and  cases  cited  ;  post,  §  179.  that  sum  to  her  who   married  on  the 

3  Peachey  Mar.  Settl.  65;  Macq.  strength  of  it.  Such  is  the  advantage 
Hus.  &  Wife,  242 ;  Logan  v.  Goodall,  of  equity  over  the  law.  See  Prebble 
42  Ga.  95.  But  see  Dillaye  v.  Green-  v.  Bogliurst,  1  Swan.  309,  before  Lord 
ough,  45  N.  y.  438.  Eldon,   cited   in   Macq.    Hus.  &  Wife, 

A  strong  instance  of  the  liberality  of  243  eZ  seq. ;  Cannel  v.  Buckle,  2  P.  Wms. 
the  equity  courts  in  this  respect  was  242;  Rippon  i-.  Dawding,  Ambl.  565; 
afforded  in  an  early  decision  by  Lord  Peachey  Mar.  Settl.  65.  Bonds  have 
Keeper  Wright.  The  intended  lius-  been  frequently  enforced  in  this  coun- 
band  gave  the  intended  wife  a  bond  try  as  constituting  a  marriage  settle- 
conditioned  to  leave  her  £1,000  if  she  ment.  Aucker  f.  Levy,  3  Strobh.  Eq. 
.should  survive  him.  They  married,  197;  Hunter  r.  Bryant,  2  Wheat.  32; 
and  of  course  the  bond  became  void  at  Freeman  v.  Hill,  1  Dev.  &  Bat.  Eq. 
law.  But  It  was  held  that  in  equity  889  ;  Baldwin  v.  Carter,  17  Conn.  201. 
this  should  subsist  as  an  antenuptial  *  Cochran  v.  McBeath,  1  Del.  Oh. 
agreement.     Acton  v.  Pierce,  2  Vern.  187. 

245 


§  177  THE   DOMESTIC   RELATIONS.  [PART   II. 

"  When  promises  and  agreements  in  consideration  of  mar- 
riage," says  Mr.  Macqueen,  "■  are  meant  to  become  the 
ground-work  of  settlements,  they  are  called  marriage  articles. 
They  are  often  drawn  up  hastily,  and  signed  on  the  eve  of 
the  nuptial  ceremony  from  want  of  time  to  prepare  a  final 
deed ;  which,  however,  when  ultimatel}^  executed,  if  it  be  in 
strict  conformity  with  the  articles,  will  supersede  them."  ^ 
The  American  rule  is  favorable  to  marriage  articles,  although 
unskilfully  drawn,  so  long  as  they  are  hotia  fide  articles,  and 
the  party  marrying  upon  their  faith  had  good  reason  to  rely 
upon  them  as  such.^  Any  settlement  made  after  marriage, 
in  pursuance  of  marriage  articles,  or  what  may  be  construed 
as  such,  receives  the  full  support  of  the  marriage  consider- 
ation, and  must  prevail  accordingly  against  creditors,  pur- 
chasers, and  each  of  the  married  parties. 

Letters  or  a  correspondence  before  marriage  may  establish 
an  antenuptial  settlement  where  they  sufficiently  furnish  the 
terms  of  tiie  agreement.  And  so,  too,  may  they  constitute 
marriage  articles  and  support  a  settlement  made  in  pursuance 
of  their  terms.^  But  the  authenticity  of  such  correspondence 
should  be  well  established,  so  easy  is  such  proof  manufactured 
to  suit  emergencies ;  and  certainly  where  the  contest  is  be- 
tween the  married  pair  and  a  husband's  creditors,  the  true 
date  of  the  letters  should  be  proved,  or  else  that  they 
were  duly  received  before  the  marriage.*  Nor  will  perform- 
ance be  decreed,  unless  it  can  be  gathered,  from  a  fair  inter- 
pretation of  the  letters,  that  they  imported  a  concluded 
agreement,  and  induced  the  marriage;  nor  if  it  be  doubtful 
whether  what  passed  was  not  mere  negotiation,  or  a  gratui- 
tous offer  by  the  one,  which  the  other  never  accepted  nor 
meant  to  rely  upon.^ 

1  Macq.  Hus.  &  Wife,  246.  611  ;  Hammersley  v.  De  Bid,  12  CI.  & 

2  Neves  v.  Scott,  9  How.  infj ;  Hooks  Fin.  45  ;  Moorliouse  v.  Colvin,  15  Beav. 
V.  Lee,  8  Ired.  Eq.  157;  Rivers  v.  349  ;  Kinnard  y.  Daniel,  13  B.  iMonr.  49(5. 
Tliayer,  7  Rich.  Eq.  136;  Kinnard  v.  *  Kinnard  v.  Daniel,  13  B.  Monr. 
Daniel,  13  B.  Monr.  490  ;  Montgomery  496  ;  Montgomery  v.  Henderson,  3  Jones 
r.  Henderson,  3  Jones  Eq.  113:  Smith  Eq.  113. 

V.  Moore,  3  Green   Ch.  485;    Potts   v.         '•"  Fovvle  v.   Freeman,   9    Vcs.  315; 
Cogdell,  1  Desaiis.  456.  Card    r.  Jaffray,  2    Sch.    &  Lef.  384; 

3  Logan  V.  'VVienholt,  1  01.  &  Fin.     Ciiarabers  «.  Sallie,  29  Ark.  407. 

246 


CHAP.  XIII.]         ANTENUPTIAL   SETTLEMENTS.  §  179 

§  178.  Marriage  Settlements  by  Third  Persons. —  Promises 
made  in  consideration  of  the  marriage  by  a  third  party,  such 
as  the  wife's  father,  may  afterwards  be  enforced  against  him, 
as  (in  such  an  instance)  hy  the  husband.  But  it  must  appear 
that  the  hitter  knew  of  the  promise,  and  that  it  entered  as  an 
ingredient  into  the  marriage  ;  and  the  husband  cannot,  upon 
finding,  after  marriage,  that  his  wife,  while  single,  had 
received  a  letter  from  her  father,  promising  a  certain  allow- 
ance, hold  the  latter  to  specific  performance.^  The  promise 
of  a  third  party  may  be  for  the  wife's  benefit ;  or  it  may  be 
for  the  mutual  benefit  of  the  married  parties,  and  enforceable 
accordingly.''^ 

Courts  of  equity  have  frequently  refused,  however,  to  en- 
force marriage  agreements  on  the  ground  of  their  being  in- 
consistent, uncertain,  and  unintelligible  ;  ^  and  particularly  is 
this  found  true  of  loose  expressions  contained  in  letters  writ- 
ten by  relatives  of  the  married  parties,  upon  which  the  attempt 
is  made  to  render  them  chargeable  when  the  marriage  was  not 
thereby  induced.^ 

§  179.  Effect  of  Statute  of  Frauds.  —  Under  the  English 
Statute  of  Frauds,  and  similar  enactments  in  various  Amer- 
ican States,  promises  "in  consideration  of  marriage"  are  re- 
quired to  be  in  writing ;  and  hence  an  oral  promise  to  settle 
property  upon  an  intended  spouse  is  void.^  Cases  have 
arisen,  however,  under  the  Statute  of  Frauds,  where  the 
marriage  agreement  had  been  reduced  to  writing,  but  not 
signed,  and  yet  letters  passed  afterwards  between  the  parties, 

1  Ayliffe  v.  Tracy,  2  P.  Wms.  66 ;  Mar.  Settl.  68 ;  Quinlan  v.  Quinlan, 
Madox  V.  Novvlan,  Beatty,  632.  Hayes  &  Jones,  Jr.  Kep.  785  ;  Maunsell 

2  Thus,  in  a  recent  English  case  the     v.  White,  1  Jo.  &  Lat.  539. 

estate  of  a  fatiier  was  held  bound  by  *  Hincks  v.  Allen,  28  W.  R.  533. 
his  written  statements  of  intention  to  As  to  carrying  out  the  wishes  of  a 
settle  the  whole  of  his  property  upon  liis  third  party  respecting  property  de- 
daughter,  on  the  strength  of  which  she  vised  so  as  to  settle  it  upon  marrying, 
married  ;  and  this,  notwithstanding  the  see  Teasdale  v.  Brailhwaite,  5  Ch.  D. 
father,  being  at  the  time   a   widower,  630. 

remarried  afterwards  and  left  a  widow.  5  Tawney  v.  Crowther,  3  Bro.  C.  C. 

Coverdaie  v.  Eastwood,  L.  R.  15  Eq.  263;  Coles  v.  Trecothick,  9  Ves.  250; 

121 ;  a. harsh  case,  truly.  Lloyd  v.  Fulton,  91  U.  S.  Supr.  479  ; 

3  Franks  v.  Martin,  1  Eden,  309;  Flenner  y.  Flenner,  29  Ind.  569  ;  Henry- 
Kay  V.  Crook,  3  Jur.  n.  s.  107;  Peachey  v.  Henry,  27  Ohio  St.  121. 

247 


§  181  THE  DOMESTIC   RELATIONS.  [PART   II. 

referring  to  the  agreement,  which  sufBcecl  to  establish  it.  In 
general,  a  letter  which  contains  the  terms  of  an  agreement, 
or  refers  to  another  paper  which  specifies  the  terms,  is  suffi- 
cient to  take  the  contract  out  of  the  Statute  of  Frauds.^ 

§  180.  General  Requirements;  Trustee,  &c.  —  Antenuptial 
agreements  are  so  liable  to  misapprehension  and  fraud,  that 
they  will  not  be  enforced  in  equity  unless  the  court  is  satis- 
fied that  they  were  made,  and  that  the  marriage  consideration 
really  entered  into  the  contract.^  If  in  the  form  of  a  writing, 
due  delivery  should  appear ;  though  if  the  written  contract 
be  produced  from  the  proper  custody,  and  its  execution 
proved,  proper  delivery  is  readily  presumed.^  Where  duly 
made  and  delivered,  such  settlements  may  be  cancelled  ;  but 
whether  a  mutilated  instrument  was  intentionally  cancelled 
or  not  is  matter  for  proof.* 

Under  modern  rules  of  separate  use,  a  valid  marriage  set- 
tlement may  be  made  without  the  designation  of  a  trustee, 
though  in  such  contracts,  when  drawn  up  with  due  formality, 
trustees  are  commonly  interposed  outside  the  marriage  rela- 
tion, however,  who  hold  the  legal  title ;  and  such  is  unques- 
tionably the  more  prudent  arrangement.^ 

§  181.  Secret  Settlement  before  Marriage;  Fraud  of  a  Spouse. 
—  A  secret  settlement  or  voluntary  transfer  in  whole  or  in 
part  of  her  property  made  by  a  woman  upon  third  persons, 
while  engaged,  and  contemplating  marriage,  is  liable  to  be 
set  aside  in  equity  as  a  fraud  upon  the  marital  rights  of  her 
intended  husband,  at  the  husband's  instance,  when  he  learns 
of  it.     Prima  facie,  her  transactions  as  Sifeme  sole  with  refer- 


1  Hammersley  v.  De  Biel,  12  CI.  &  husband's  possession  after  his  death, 
Fin.  45  ;  Moorhouse  v.  Colvin,  15  Beav.  execution  proved,  and  also  liis  recoir. 
349;  Peacliey  Mar.  Settl.  67;  3  Bro.  nition  during  his  lifetime,  due  delivery 
C.  C.  263.  was  presumed. 

2  Coles  V.  Trccothick,  9  Ves.  2-50 ;  «  Barclay  v.  Waring,  58  Ga  8(1, 
Franks  v.  Martin,  1  Eden,  309 ;  Kay  v.  See  summary  of  doctrine  in  Bold  i-. 
Crook,  .3  Jur.  N.  s.  107;  Montgomery  Hutchinson,  20  Beav.  259;  Sclioul. 
V.  Henderson,  3  Jones  Eq.  113  ;  Peacliey  Hus.  &  Wife,  §  355. 

Mar.  Settl.  68 ;  Kinnard  v.  Daniel,  13  ^  Cochran  v.    McBcath,  1   Del.  Ch. 

B.  Monr.  496.  187  ;   Peachey   Mar.   Settl.  200  ;  Hay- 

3  In  Smith  v.  Moore,  3  Green  Ch.  mond  v.  Lee,  33  Gratt.  317,  Schoul. 
485,  the  document  being  found  in  the  Hus.  &  Wife,  §  35G. 

218 


CHAP.  XIII.]         ANTENUPTIAL    SETTLEMENTS.  §  181 

ence  to  her  own  property  are  valid  both  at  law  and  in  eqnity  ; 
it  is  only  because  of  the  fraud  that  her  husband  can  after- 
wards obtain  relief  against  them  ;  yet  the  English  courts  have 
gone  far  in  discountenancing  all  conveyances  made  by  the 
intended  wife  in  derogation  of  the  property  rights  of  her  in- 
tended husband,  where  made  without  notice  to  him.^  The 
secrecy  of  the  proceeding  is  a  material  element,  from  which 
fraud  will  be  inferred.^ 

The  same  general  doctrine  has  been  repeatedly  declared  in 
the  courts  of  this  country  ;  and  secret  and  voluntary  convey- 
ances, made  by  a  woman  contemplating  marriage,  may  be  set 
aside  on  the  husband's  subsequent  application  as  a  fraud  upon 
his  marital  rights,^  under  the  same  qualification  that  the  in- 
tended spouse  was  thereby  defrauded.'* 

If  the  wife's  transfer  or  conveyance  to  another,  under  such 
circumstances,  be  without  valuable  consideration  to  herself, 
there  is  the  less  reason  why  equity  should  uphold  it ;  ^  and  if 
it  it  be  in  plain  derogation  of  her  own  interests,  as,  for  in- 
stance, to  some  insolvent  relative  to  hold  in  trust  for  her,  or 
so  as  to  suggest  that  fraud  or  coercion  was  practised  upon 
her,  it  is  for  the  common  nuptial  interests  that  courts  of 
chancery  repudiate  the  arrangement  altogether.^     By  virtue 


1  Peachej' Mar.  Settl.  142,  and  cases  preclude  all  subsequent  allegations  of 
cited;  11  C.  B.  1035;  St.  George  v.  fraud  on  tlie  marital  right.  2  Bro.  C. 
Wake,  1  Myl.  &  K.  618 ;  Macq.  Hus.  &  C  515.  It  is  the  usual  practice  with 
Wife,  36 ;  England  v.  Downes,  2  Beav.  English  conveyancers  at  the  present 
522  ;  2  Ch.  Rep.  81 ;  1  Eq.  Cas.  Ab.  day  to  make  the  intended  husl)and  a 
59,  pi.  1.  party  to  all  instruments  executed  by 

2  England  v.  Downes,  2  Beav.  522 ;  the  intended  wife  in  contemplation  of 
Macq.  Hus.  &  Wife,  36.  The  husband  or  during  a  treaty  of  marriage.  Peachey 
must  have  been  kept  in  ignorance  of  Mar.  Settl.  155. 

the  transaction  up  to  the  moment  of  ^  2  Kent  Com.  174,  175,  and  notes, 

marriage.     For,    as    Lord    Chancellor  12th  ed. ;  Spencer  v.  Spencer,  3  Jones 

Brougham    once   observed,   if  a   man,  Eq.  404;   Tucker  v.  Andrews,  13  Me. 

knowing    what    has    been    done,    still  124,  128;  Williams  i'.  Carle,  2  Stockt. 

thinks  fit  to  marry  the  lady,  he  cannot  543;  Freeman   v.  Hartman,  45  111.  57  ; 

be  permitted  to  allege  afterwards  that  Baker  v.  Jordan,  73  N.  C.  145;  Hall  v. 

he  has   been  deceived.     St.   George  v.  Carmichael,  8  Baxt.  211. 
Wake,  1  Myl.  &  K.  610.     Actual  con-         <  gchoul.    Hus.    &    Wife,    §     357; 

currence  on  the  part  of  the  intended  Gregory  v.  Winston,  23  Graft.  102. 
husband  in  his  wife's  settlement  will  be  ^  Baker   v.   Jordan,  73   N.    C.  145; 

even  more  conclusive  against  him  ;  and,  Fletcher  v.  Ashley,  6  Gratt.  332. 
even   though   he   were   a  minor,   will         ^  Hall  v.  Carmichael,  8  Baxt.  211. 

249 


§  182  THE  DOMESTIC   RELATIONS.  [PAKT  II. 

of  late  statutory  changes,  tending  to  relieve  a  husband  of  his 
wife's  antenuptial  debts,  or  of  other  common-law  burdens,  on 
her  account,  the  husband  maj^  sometimes  stand  in  equity  on 
the  stronger  footing  of  a  defrauded  creditor,  where  he  seeks 
to  liave  the  secret  couvej^ance  of  his  affianced  set  aside  in 
his  favor.i 

A  corresponding  rule  as  to  fraud  would,  doubtless,  apply 
to  a  husband,  who,  before  marriage,  liad  made  a  secret  trans- 
fer or  conveyance  of  his  own  property  to  his  wife's  injury ; 
not,  however,  without  regard  to  the  difference  which  subsists 
at  law  between  their  marital  rights  in  each  other's  property .^ 
Indeed,  it  is  someiimes  said  that  any  designed  and  material 
concealment  ought  to  avoid  an  antenuptial  contract  at  the 
will  of  the  party  who  has  been  thereby  injured.^ 

§  182.  Reforming  Marriage  Settlements  ;  Portions,  &c.  —  Mar- 
riage articles,  to  make  a  settlement  of  real  property,  should 
be  drawn  up  only  in  extreme  cases;  though,  in  the  case  of 
personalty,  more  latitude  may  be  allowed  ;  and  when  drawn 
up  they  should  leave  as  little  to  construction  as  possible. 
Yet  marriage  articles  are  frequently  pi-epared  in  great  haste, 
and  many  questions  must  necessarily  arise  as  to  the  intention 
of  the  parties  ;  these  the  courts  of  equity  endeavor  to  meet 
by  adopting  the  intention  of  the  parties  as  their  true  guide, 
and  taking  it  for  granted  that  the  articles  are  merel}'  minutes 
which  the  settlement  may  explain  more  at  large,  but  which 
are  not  to  be  literally  followed.*  The  general  rule  as  to 
reforming  settlements  framed  upon  antenuptial  articles  is 
thus  laid  down  by  Lord  Chancellor  Talbot:^  "Where  ar- 
ticles are  entered  into  before  marriage,  and  settlement  made 


1  Westerman  r.  Westerman,25  0hio  ■*  Peacliey  Mar.  Settl.  89-97  ;  Macq. 
St.  500.  But  see  Powell  v.  Manson,  22  Hus.  &  Wife,  257  ;  Trevor  v.  Trevor, 
Gratt.  177.  1  P.  Wins.  631  ;  Blamlford  v.  Marlbo- 

2  See  Leach  w.  Duvall,  8  Rusli,  201 ;  rough,  2  Atk.  545;  Roclifort  v.  Fitz- 
Gainor  v.  Gainor,  26  Iowa,  3:57.  Lapse  maurice,  Dru.  &  War.  18.  But  see 
of  time  and  other  circumstances  may  Breadalbane  v.  Chandos,  2  Myl.  &  Cr. 
remove  any  presumption  of  fraud  or  711. 

unfairness  on  his  part.     Butler  i;.  But-  ^  LeRg   «'•  Gold  wire,  Forrester,  20; 

ler,  21  Kan.  521.  Macq.  Hus.  &  Wife,  259. 

3  Kline  v.  Kline,  57  Penn.  St.  120.; 
Kline's  Estate,  64  Penn.  St.  122. 

250 


CHAP.  XIII.]  ANTENUPTIAL    SETTLEMENTS. 


183 


after  marriage,  differing  from  the  articles,  this  court  will  set 
up  the  articles  against  the  settlement."  That  is  to  say,  the 
court  will  order  the  settlement  to  be  reformed,^ 

§  183.  Equity  corrects  Mistakes,  or  sets  aside;  Fraud  and  Im- 
providence. —  Mistakes  in  marriage  settlements,  either  through 
error  or  fraud,  will  in  general  be  corrected  in  equity  ;  the 
principle  being  that  the  parties  are  to  be  placed  in  the  same 
situation  in  which  they  would  have  stood  if  the  error  to  be 
corrected,  or  the  fraud,  had  not  been  committed.^  Owing, 
moreover,  to  the  confidential  relation  which  subsists  between 
the  parties,  an  antenuptial  contract  which  appears  to  have 
been  unfairly  procured  will  be  set  aside.^  Equity,  moreover, 
sometimes  refuses  to  enforce  an  antenuptial  settlement,  as 
between  husband  and  wife,  not  only  because  of  its  fraudulent 
character  as  regards  the  one  or  the  other  party,  but  on  the 
ground  that  it  is  improvident ;  *  yet  relief  of  this  sort  is 
rarely  afforded,  and  especially  so  where  a  third  party,  or  the 
husband,  not  the  wife,  seeks  it.^  And  Avhile  the  intended 
wife  may,  perhaps,  in  an  extreme  case,  be  relieved  from  an 
antenuptial  contract  which  bears  very  harshly  upon  her  prop- 


1  Legg  V.  Goldwire,  Forrester,  20. 
See  Peachey  Mar.  Settl.  135 ;  Bold  v. 
Hutchinson,  2  Jur.  n.  s.  97  ;  5  De  G 
M.  &  G.  567.  As  to  portions  for  cliil- 
dren,  &c.,  see  Schoul.  Hus.  &  Wife, 
§  359  ;  1  Atk.  522  ;  W^allace  v.  W.allace, 
82  111.  430 ;  Russell  v.  St.  Aubyn,  L.  K. 
2  Ch.  D.  398. 

And  curiously  enough  in  an  English 
case  under  tiiis  head,  tiiough  the  settle- 
ment followed  the  precise  words  of  the 
marriage  articles,  the  court  reformed  it, 
in  order  to  carry  out  the  actual  inten- 
tion of  the  parties.  West  v.  Errissey, 
2  P.  Wms.  350. 

Marriage  articles  under  which  par- 
ties agree  to  make  a  settlement  and  yet 
fail  to  do  so,  may,  apart  from  the  par- 
tial performance  which  marriage  might 
be  said  to  establish,  afford  one  the  right 
to  damages  as  against  the  other.  Jes- 
tony.  Key,  L.  R.' 6  Ch  610. 

2  Rooke  V.  Lord  Kensington,  2  Kay 
&  Johns.  770  ;  Peachey  Mar.  Settl.  565, 


576 ;  Sanderson  v.  Robinson,  6  Jones 
Eq.  155;  Love  v.  Graliam,  25  Ala.  187  ; 
Walker  v.  Armstrong,  2  Jur.  n.  s.  962 ; 
Brown  v.  Bonner,  8  Leigh,  1  ;  Cook  v. 
Fearn,  27  W.  R.  212  ;  Brown  v.  Brown, 
31  Gratt.  502 ;  Russell's  Appeal,  75 
Penn.  St.  269.  Correction  made  after 
the  death  of  a  spouse,  in  Burge  v. 
Burge,  45  Ga.  301. 

3  Pierce  v.  Pierce,  71  N.  Y.  154; 
Daubenspeck  v.  Biggs,  71  Ind.  255 ; 
Pond  V.  Skeen,  2  Lea,  126;  Russell's 
Appeal,  75  Penn.  St.  269. 

4  Everitt  v.  Everitt,  L.  R.  10  Eq. 
405 ;  Dillaye  v.  Greenough,  45  N.  Y. 
438. 

s  As  to  construction  of  antenuptial 
settlements,  see  Schoul.  Hus.  &  Wife, 
§  361.  Such  settlements  may  renounce 
legal  rights  of  the  survivor  in  the  estate 
of  the  spouse  first  dying.  Ih.  §  362. 
Or  provide  for  settling  after-acquired 
property.     Ih.  §  364. 

251 


§  184  THE   DOMESTIC    RELATIONS.  [PART    II. 

erty  rights,  as  though  defrauded  and  deceived  in  the  arrange- 
ment, there  is  no  doubt  that  where  she  is  of  competent  age 
she  may  bargain  away  her  rights  quite  extensively  under  a 
marriage  contract,  as  her  husband  likewise  could  have  done  ; 
provided,  of  course,  that  her  deliberate  intention  to  do  so  be 
made  manifest ;  and  in  this  state  of  the  law  it  certainly  be- 
comes a  matter  of  serious  question  what  these  fundamental 
property  rights  may  be  which  spouses  ought  not  reciprocally 
to  relinquish.^ 


CHAPTER  XIV. 


POSTNUPTIAL    SETTLEMENTS  ;    GIFTS   AND    GENERAL  TRANS- 
ACTIONS  BETWEEN    SPOUSES. 

§  184.  Postnuptial  Settlements  distinguished  from  Antenuptial ; 
Gifts  between  Spouses.  —  The  important  distinction  between 
settlements  before  and  settlements  after  marriage  is  that, 
while  the  former  have  the  marriage  consideration  to  support 
them,  the  latter  are  without  it.^  The  term  "  postnuptial  set- 
tlements," then,  must  not  confuse  the  reader's  mind.  We  use 
the  language  of  the  text-writers  without  meaning  to  imply 
that  it  is  appropriate,  or  that  antenuptial  and  postnuptial  set- 

1  Yeaton  v.  Yeaton,  4  111.  App.  579.  her  own  absolute  keeping.  Yet  mar- 
Such  reservations,  however,  as,  e.  g.,  to  riage  settlements  miniit  often  be  well 
dispose  by  will,  if  made,  must  be  re-  resorted  to  in  order  to  equalize  the 
spected.  Bishop  i'.  Wall,  3  Cli.  D.  194;  burdens  and  privileges  of  matrimony, 
Rogers  v.  Cunningham,  51  Ga.  40;  while  our  local  legislation  remains  in 
Russell's  Appeal,  75  Penn.  St.  269 ;  its  present  crude  condition.  If  settle- 
Reynolds  V.  Brandon,  3  Heisk.  593.  ments  of   property   are    made    to   the 

As  to  broach  and  forfeiture  of  rights  wife's  separate  use,  the  usual  equitable 
under  a  settlement,  see  Schoul.  IIus.  &  rules  apply,  as  to  making  the  property 
Wife,  §  308.  Marriage  settlements  are  liable  for  her  debts  and  engagements. 
very  common  in  England,  among  par-  Tiie  local  registry  system  in  the 
ties  possessed  of  large  means  ;  not  gen-  United  States  raises  questions  of  con- 
erally  so  in  this  country,  altliough  structive  notice,  as  to  marriage  settle- 
many  are  made  in  the  Southern  States  ments  and  the  property  embraced  there- 
and  elsewhere.  Tiie  American  policy  in.  Schoul.  Hus.  &  Wife,  §  369. 
is  to  dispense  with  trusts,  and  place  a  -  Supra,  §  172  ;  Lannoy  v.  Duke  of 
married  woman's  separate  property  in  Athol,  2  Atk.  448. 

252 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  185 

tlements  constitute  two  branches  of  one  general  subject.  On 
the  contrary,  postnuptial  settlements  are  usually  nothing 
more  nor  less  than  gifts  of  real  or  personal  property,  or  of 
both,  between  husband  and  wife,  which  equity  places,  not- 
withstanding the  disabilities  of  coverture,  upon  the  footing  of 
other  gifts. ^  Furthermore,  it  should  be  remembered  that 
formal  settlements  made  between  parties  in  the  marriage 
state,  in  pursuance  of  articles  or  memoranda  signed  before 
marriage,  are  not  technically  postnuptial  settlements  (as  the 
name  itself  would  seem  to  indicate)  ;  for  the  settlement 
relates  back  to  the  antenuptial  stipulations,  however  loosely 
these  may  have  been  drawn  up,  and  it  is  protected  by 
the  marriage  consideration,  like  all  other  antenuptial  con- 
tracts. 

But  though,  for  want  of  consideration,  postnuptial  settle- 
ments are  deemed  voluntary,  yet,  like  other  voluntary  trans- 
actions, they  will  be  valid  and  binding,  so  far  as  the  parties 
are  concerned,  and  can  only  be  impeached  as  fraudulent  upon 
others.  Postnuptial  settlements,  therefore,  must  be  viewed 
in  two  different  aspects :  (1)  as  between  the  married  parties 
and  the  creditor  or  purchasers  of  either ;  (2)  as  between 
husband  and  wife  themselves.  These  we  shall  consider  in 
order. 

§  185.  Postnuptial  Settlements  as  to  Creditors  and  Purchasers  ; 
Statutes  13  Eiiz.  and  27  Eliz. —  There  are  two  English  stat- 
utes which  control  this  subject,  as  concerns  creditors  and 
purchasers,  to  a  great  extent,  wherever  the  husband  makes  a 
postnuptial  settlement  upon  his  wife  and  offspring.  The  first 
is  that  of  13  Eliz.  c.  5,  in  favor  of  creditors  ;  the  second  that 
of  27  Eliz.  c.  4,  in  favor  of  purchasers  ;  the  one  being  di- 
rected against  fraudulent  conveyances  of  all  propert}^  with 
intent  to  defeat  or  delay  creditors  ;  the  other  against  fraudu- 
lent or  voluntary  conveyances  of  lands  designed  to  defeat 
subsequent  purchasers.  These  statutes,  Lord  Mansfield  said, 
cannot   receive  too   liberal  a  construction   or  be  too  much 


1  "  Gift,"  in  tlie  more  teclinical  sense,    the  word  here  in  its    wider  sense.     2 
concerns  personal  property,  but  we  use     Schoul.  Pers.  Prop.  55. 

253 


§  18G  THE   DOMESTIC   RELATIONS.  [PART   II. 

extended  in  suppression  of  fraud. ^     The  bankrupt  acts  are 
material  to  consider  in  the  former  connection. 

§  186.  Same  Subject ;  Statute  13  Eliz. ;  Bankrupt  Acts.  —  As 
to  the  first  of  these  statutes,  it  is  held  that,  if  a  man  who  is 
indebted  conveys  property  for  the  use  of  his  wife  and  chil- 
dren, or  in  trust  for  their  benefit,  such  a  conveyance  is  sub- 
ject to  the  statute  prohibition,  inasmuch  as  the  consideration, 
although  good  between  the  parties  themselves,  is  not  bona 
fide  as  regards  creditors.^  But  a  voluntary  deed  is  good  as 
against  subsequent  creditors  ;  and  there  can  be  nothing  in- 
equitable in  a  man's  making  a  voluntary  conveyance  to  a 
wife,  child,  or  even  a  stranger,  if  it  be  not  at  the  time  preju- 
dicial to  the  rights  of  third  persons,  or  in  furtherance  of  some 
design  of  future  fraud  or  injury  to  them.^  The  question  of 
fraudulent  intent  is  the  real  point  at  issue.  And  as  to  fraud 
upon  future  creditors,  it  has  been  said  that  while  an  instru- 
ment might  be  executed  with  the  purpose  of  defrauding 
them,  it  is  not  a  thing  very  likely  to  happen.*  The  property 
which  may  be  recovered  by  creditors  does  not  embrace  prop- 
erty which  is  exempt  from  execution  ;  for  the  creditors  have 
no  concern  with  anything  except  assets,  actual  or  possible, 
for  the  payment  of  their  debts.^  This  was  formerly  a  matter 
of  dispute  ;  but  it  is  now  apparently  set  at  rest. 

The  statute  of  13  Eliz.  c.  5,  is  generally  recognized  through- 
out the  United  States ;  in  some  cases  having  been  formally 
re-enacted  ;  in  others,  claimed  to  be  part  of  the  common  law 
transported  hither  by  the  first  settlers  ;  and  hence  gifts  of 
goods  and  chattels,  as  well  as  voluntary  conveyances  of  lands, 
by  writing  or  otherwise,  are  void  when  made  with  intent  to 
delay,  hinder,  and  defraud  creditors,  even  though  tlie  gift  or 
conveyance  be  to  wife  and  children.^     For  it  is  a  maxim,  both 

1  Cowp.  434 ;  Peachey  Mar.   Settl.  §   "73,    and    cases    citerl  ;   Jac.    552 
189.  Peachey  Mar.    Settl.  195;  1  Atk.  93 

2  Goldsmith  v.  Russell,  5  De  G.  M.  Turnley  v.  Hooper,  2  Jur.  n.  s.  1081 
&  G.  547  ;  Peachey  Mar.  Settl.  191.  French  v.  French,  6  De  G.  M.  &  G.  95. 

3  Holloway  v.  Millard,  1  Madd.  414 ;  ^  Peacliey  Mar.  Settl.  109  et  seq. ; 
Peaciiey  Mar.  Settl.  192.  1  Story  Eq.  Juris.  §  410.     See  2  Kent 

4  Jcnkyn  v.  Vaughan,  25  L.  J.  Eq.  Com.  443,  n.,  12th  ed. 

.3-30;  Holmes  v.  Penney,  3  Kay  &  Johns.  ^  2  Kent.  Com.  440,  441,  and  cases 

102.    See  further,  Schoul.  Has.  &  Wife,    cited ;  Bayard  v.  Hoffman,  4  Johns.  Ch. 

254 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  186 

at  the  civil  and  common  law,  that  the  claims  of  justice  shall 
precede  those  of  affection.^  And  in  general  the  rule  appears 
to  be  co-extensive  with  the  fraud  in  this  country  as  in  Eng- 
land. 

But  it  must  be  admitted  the  principle  is  not  stated  with 
equal  precision  in  all  the  States  ;  and  while  some  cases  doubt- 
less  proceed  upon  the  doctrine  that  the  voluntary  gift  fails 
because  there  is  an  intent  to  hinder  and  defraud,  others  again 
seem  to  rest  upon  the  mere  existence  of  actual  creditors  whose 
rights  are  thereby  impaired  or  prejudiced.  It  is  not  Avithin 
our  province  to  treat  of  this  subject  in  its  general  bearings, 
as  in  gifts  between  man  and  man  ,  but  so  far  as  tlie  American 
decisions  concern  gifts  between  husband  and  wife,  we  shall 
presently  give  the  results  somewhat  at  length.^  According 
to  the  modern  current  of  American  authorities,  mere  indebt- 
edness at  the  time  of  a  settlement  is  only  presumptive  proof 
of  fraud,  which  ma}'-  be  exphiined  or  rebutted  ;  and  it  mast 
also  be  shown  that  the  husband  was  insolvent,  or  that  the 
settlement  directly  tended  to  impair  the  rights  of  creditors.^ 
The  language  of  the  statutes  in  some  States  contributes  to 
the  confusion  which  prevails  as  to  the  correct  legal  doctrine 
on  this  whole  subject.  Furthermore,  our  registry  s^-stera 
places  the  law  in  a  somewhat  different  footing  from  that 
prevalent  in  England,  in  all  settlements,  as  we  noticed  in 
the  preceding  chapter.* 

Voluntary  settlements,  in  England,  are  likewise  affected  by 
the  bankrupt  acts,  which  are  intimately  connected  with  the 
statute  of  Elizabeth.^  Here  questions  arise  as  to  what  acts 
amount  to  a  contemplation  of  bankruptcy ;  and  what  consti- 
tutes a  fraudulent  preference  ;  and  these  we  need  not  here 
discuss.     But  it  should  be  observed  that  the  husband  cannot 

450 ;  Montgomery  v.  Tilley,  1  B.  Monr.  463  et  seq.,  where  the  subject  is  dis- 

157  ;  Reade  v.  Livingston,  3  Johns.  Ch.  cussed  at  length,  with  citations  from 

481;    Pinney  v.   Fellows,  15  Vt.  525;  American  cases;  post,  §  187,  note,  with 

Simpson  v.  Graves,  Riley  Ch.  232  ;  Sex-  American  citations  as  to  creditors  and 

ton  V.  Wheaton,  8  Wheat.  229  ;  1  Am.  purchasers  ;  Schoul.  Hus.  &  Wife,  §  374. 
Lead.  Cas.  1.  '  Post,  note,  §  187. 

1  Cicero,  de    Off.  I.   14,   cited   in  2  *  Supra,  §  183,  n. 

Kent  Com.  441.  5  Peachey  Mar.  Settl.  210  et  seq. 

2  See  2  Kent  Com.  440  et  seq.;  4  ib. 

255 


§  187  THE  DOltfESTIC   RELATIONS.  [PART  II. 

bestow  his  property  upon  his  wife,  conditional  upon  his  future 
bankruptcy  or  insolvency  ;  yet,  that  third  persons  may,  by 
voluntary  conveyance,  settle  property  to  the  wife's  separate 
use,  free  from  all  control  of  her  husband  ;  or  in  trust  to  pay 
the  income  to  the  husband  for  life,  "  or  until  he  should  become 
a  bankrupt,"  and  after  that  to  the  wife's  separate  use.^  In  the 
former  case  the  transaction  would  be  simpl}^  an  artifice  of 
the  husband  to  evade  the  bankrupt  laws  ;  in  the  latter,  a 
third  person  parts  with  his  own  property,  and  makes  his  own 
terms  as  to  its  final  disposition,  as  he  has  a  right  to  do.^  Our 
national  bankruptcy  system,  as  lately  existing,  also  affected 
the  doctrine  of  fraudulent  conveyances  in  the  United  States.^ 
With  the  Bankrupt  Act  repealed,  however,  tliis  whole  sub- 
ject becomes  regulated  by  State  insolvent  laws,  which  are 
far  from  uniform  in  their  scope  and  puipose.  As  to  artifices 
by  a  husband  for  keeping  his  own  jDroperty  under  his  own 
control,  subject  lo  its  di\'estinent  in  his  wife's  favor  upon 
his  bankruj^tcy,  the  AmericaE  rule,  like  the  English,  dis- 
countenances them.* 

§  187.  Same  Subject;  Stat.  27  Eliz. —  Settlements  as  con- 
cerns the  right  of  creditors  and  purchasers  are  also  affected 
b}''  the  statute  of  27  Eliz.  c.  4.  This  statute,  too,  is  to  be 
considered  as  part  of  the  common  law  brought  to  this  country 
by  our  ancestors  ;  though  not  generally  adopted  here  to  the 
full  extent  of  the  English  equity  decisions.^  It  provides  that 
all  conveyances  of  lands,  made  with  the  intent  to  defraud 
and  deceive  purchasers,  shall,  as  against  them,  be  utterly 
void.  The  statute  has  no  application  whatever  to  personal 
estate.^ 

The  English  doctrine  is  that  a  voluntary  conveyance, 
though  for  a  meritorious  purpose,  shall  be  deemed  to  have 

1  Manning  v.  Chambers,  1  De  G.  &  ^  Re  Alexander,  1  Lowell,  470.  And 
Sm.  282  ;  Sliarp  v.  Cosserat,  20  Beav.     see  Re  Jones,  6  Biss.  68. 

473.     Provisions  for  children  are  liable  *  Levering  v.   Heiglie,   2  Md.   Ch. 

to  this  objection.  81  ;  Head  v.  Halford,  5  Rich.  Eq.  128 ; 

2  Ware  v.  Gardner,  L.  R.  7  Eq.  317.  Peigne  v.  Snowden,  1  Desaus.  591. 
As  to   antenuptial   provisions   of   this  ^  4  Kent  Com.  403. 

character,  see  Schoul.  Hus.  &  Wife,  ^  Sugden  Vend.  &  Parch.  587,  18th 
§  365.  ed. ;  Peachey  Mar.  Settl.  226;  4  Kent 

Com.  463. 

256 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  187 

been  made  with  fraudulent  views,  and  must  be  set  aside  in 
favor  of  a  subsequent  purchaser  for  a  valuable  consideration, 
even  though  he  had  notice  of  the  prior  deed.^  In  other 
words,  while  the  statute  of  13  Eliz.  permits  a  voluntary  con- 
veyance to  stand  as  against  subsequent  creditors,  that  of  27 
Eliz.  makes  a  voluntary  conveyance  of  land  void  as  against 
a  subsequent  purchaser  for  value.  The  principle  on  which 
the  English  cases  rest  appears  to  be  that,  by  selling  the  prop- 
erty over  again  for  a  valuable  consideration,  the  vendor  so 
entirely  repudiates  the  former  transaction  and  shows  his  in- 
tention to  sell,  that  the  presumption  against  the  prior  gift 
becomes  conclusive.^  And  while  the  correctness  of  this  prin- 
ciple might  well  be  doubted  in  its  application  to  subsequent 
purchasers  with  notice,  yet,  as  Lord  Thurlow  said,  so  many 
estates  stand  upon  the  rule,  that  it  cannot  be  now  shaken.^ 
This  doctrine  applies  to  postnuptial  settlements  in  England.* 
Fortunately  in  this  country  we  have  been  hampered  by  no 
such  severe  construction  of  this  statute.  And  in  a  case  before 
the  Supreme  Court  of  tlie  United  States  it  was  held  that  the 
principle  of  construction  which  prevailed  in  England  at  the 
commencement  of  the  American  Revolution  went  no  further 
than  to  hold  the  subsequent  sale  to  be  presumptive,  and  not 
conclusive,  evidence  of  a  fraudulent  intent  in  making  the 
prior  voluntary  conveyance  ;  and  the  court  declined  to  follow 
the  subsequently  established  construction  of  Westminster 
Hall.^  And  the  better  American  doctrine  seems  to  be  that 
voluntary  conveyances  of  land,  bona  fide  made,  and  not 
originally  fraudulent,  are  valid  as  against  subsequent  pur- 
chasers having  record  or  other  notice.^ 

In  some  States,  the  English  statute  is  re-enacted  with  the 

1  Doe  V.  Manning,  9  East,  59.  in  such  deeds,  in  order  to  deter  piir- 

2  Doe  V.  Rusham,  17  Q.  B.  724 ;  16    chasers. 

Jur.  359.  6  Cathcart  v.  Robinson,  5  Pet.  280. 

3  Evelyn  v.  Templar,  2  Bro.  C.  C.  ^  4  Kent.  Com.  464,  n.,  and  cases 
148 ;  Peachey  Mar.  Settl.  228,  and  cited  ;  Jackson  v.  Town,  4  Cow.  603 ; 
cases  cited.  Ricker  v.  Ham,  14  Mass.  139 ;  Atkin- 

4  See  Bill  v.  Cureton,  2  Myl.  &  K.  son  v.  Phillips,  1  Md.  Ch.  507;  Sliepard 
510 ;  Peachey  Mar.  Settl.  232, 240.  And  v.  Pratt,  32  Iowa,  296  ;  Beal  v.  Warren, 
English  conveyancers  insert  words  im-  2  Gray,  447.  But  cnntra,  see  Clanton 
porting  certain  valuable  considerations  v.  Barges,  2  Dev.  Cli.  13. 

17  257 


187 


THE   DOMESTIC   RELATIONS. 


[part  II. 


language  essentially  changed  ;  as  in  Connecticut  and  New 
York.  And  it  is  the  settled  American  doctrine  that  a  hona 
fide  purchaser  for  value  is  protected,  whether  he  purchases 
from  a  fraudulent  grantor  or  a  fraudulent  grantee ;  and  that 
there  is  no  difference  in  this  respect  between  a  deed  to  de- 
fraud subsequent  creditors,  and  one  to  defraud  subsequent 
purchasers  ;  both  being  voidable  only  and  not  absolutely 
void.^  As  to  negotiable  instruments  not  overdue,  too,  the 
usual  equity  rule  may  apply,  which  protects  in  general  the 
rights  of  a  hona  fide  holder  for  consideration  and  without 
notice  of  adverse  claim  or  fraudulent  intent.^ 


1  4  Kent  Com.  464,  and  cases  cited 
in  notes  ;  Anderson  v.  Roberts,  18  Jolms. 
515 ;  Bean  v.  Smith,  2  Mason,  252 ; 
Eldred  v.  Drake,  43  Iowa,  569  ;  Orien- 
tal Bank  v.  Haskins,  3  Met.  332.  So 
tlie  Englisii  Stat.  3  &  4  Will.  IV.  c.  27, 
§  2(3,  protects  bona  Jide  purchasers  for 
value. 

'^  Farmers'  Bank  v.  Brooke,  40  Md. 
249. 

The  following  American  cases  may 
be  cited  with  reference  to  the  effect  of 
a  husband's  postnuptial  settlement  as 
against  his  creditors,  &c.  See  supra, 
§  186.  In  several  States  it  is  ex- 
pressly held  that  a  voluntary  transfer 
or  conveyance  from  husband  to  wife  is 
valid  against  all  subsequent  creditors 
and  purchasers.  United  States  Bank 
V  Ennis,  Wright,  G05;  Beach  v.  AVhite, 
Walk.  Ch.  495;  Davis  v.  Ilerrick,  37 
Me.  397  ;  Story  v.  ]\Iarshall,  24  Tex. 
305 ;  Phillips  v.  Meyers,  82  111.  67.  A 
postnuptial  settlement  is  not  invalid,  it 
is  recently  declared  by  tiie  Supreme 
Court  of  the  United  States,  if  rights 
of  existing  creditors  be  not  impaired. 
Clark  V.  Killian,  103  U.  S.  Supr.  766 ; 
Jones  V.  Clifton,  101  U.  S.  Supr.  225. 
In  New  Jersey,  however,  the  rule,  as 
concisely  stated,  is  that  tlie  husband's 
settlement,  if  voluntary,  is  fraudulent 
as  to  existing  debts  by  an  inference  of 
law  ;  and,  as  to  subsequent  debts,  fraud 
in  fact  must  be  proved.  Annin  v.  An- 
nin,  24  N.  J.  Eq.  184  ;  Belford  v.  Crane, 
1  C.  E.  Green,  265.     This  is  the  doc- 

258 


trine  in  New  York  and  many  other 
States,  and  indeed  a  preferable  one, 
though  the  tendency  is  to  regard  in- 
tent. Reade  v.  Livingston,  3  Johns. 
Ch.  481,  supra,  §  1S6  ;  Lyman  v.  Cess- 
ford,  15  Iowa,  229.  And  Chancellor 
Kent  has  ruled,  in  the  leading  Ameri- 
can case  on  tliis  subject,  that  if  a  settle- 
ment after  marriage  be  set  aside  by 
the  prior  creditors,  subsequent  credit- 
ors are  entitled  to  come  in  and  be  paid 
out  of  the  proceeds  of  the  settled  es- 
tate. Reade  v.  Livingston,  3  Johns. 
Ch.  481.  That  intended  fraud,  and  this 
alone,  should  be  considered,  as  to  a 
husband's  subsequent  creditors,  in  case 
of  his  voluntary  settlement  for  his  wife 
and  children,  see  Mattingly  v.  Nye,  8 
AYall.  370;  Caswell  v.  Hill,  47  N.  H. 
407  ;  Phillips  v.  Wooster,36  N.  Y.  412  ; 
Place  V.  Rjiem,  7  Bush,  585 ;  Niller  v. 
Johnson,  27  Md.  6;  Teller  v.  Bishop,  8 
Minn.  226.  The  husband's  condition 
as  to  his  creditors  is  to  be  regarded 
with  reference  to  the  time  he  made  the 
settlement  upon  his  wife,  not  with  ref- 
erence to  the  condition  subsequently 
of  liis  estate  upon  his  death.  Leavitt 
V.  Leavitt,  47  N.  H.  329.  Concerning 
the  unfavorable  effect  of  a  secret  agree- 
ment between  husband  and  wife  upon 
the  rights  of  intervening  creditors,  ig- 
norant of  such  agreement,  see  Hatch 
V.  Gray,  21  Iowa,  29;  Annin  v.  Annin, 
24  N.J.  Eq.  184;  Phelps  v.  Morrison, 
lb.  195.  A  husband's  voluntary  con- 
veyance may,  from  its  yevy  substance, 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS. 


§188 


§  188.  Same  Subject;  Settlement  upon  Valuable  Consideration. 
—  There  are  instances  in  which  a  postnuptial  settlement  has 
been  sustained  against  creditors  and  purchasers  on  the  ground 
that  a  valuable  consideration  is  interposed.^  Very  slight  or 
technical  considerations  are  often  held  sufficient  to  support  a 
gift  to  the  wife  in  English  chancery .^  So  voluntary  settle- 
ments may  become  valid  by  matter  ex  'post  facto? 


be  void  as  to  all  creditors,  being  an  ar- 
tifice to  keep  his  property  out  of  liis 
creditor's  hands  in  case  of  future  insol- 
vency while  using  it  in  trade.  Case  v. 
Phelps,  39  N.  Y.  164 ;  supra,  §  186. 
Equity  will  regard,  in  cases  of  this  sort, 
the  intent,  notwithstanding  a  compli- 
ance with  certain  formalities  of  trans- 
fer on  the  husband's  part.  Metropolitan 
Bank  v.  Durant,  22  N.  J.  Eq.  35.  That 
as  to  existing  creditors,  the  husband's 
intent  to  defraud  should  be  considered, 
which  intent  may  be  inferred  from  his 
insolvency  or  embarrassment,  see  the 
late  cases  of  Redfield  v.  Buck,  .3.5  Conn. 
328;  Gardner  v.  Baker,  2-5  Iowa,  343; 
Woolston's  Appeal,  51  Penn.  St.  452; 
Bertrand  v.  Elder,  23  Ark.  494;  Lloyd 
r.  Fulton,  91  U.  S.  Supr.  479  ;  Myers  v. 
King,  42  Md.  65. 

The  right  of  a  husband  to  settle  the 
surplus  of  property,  over  and  above 
what  he  then  owes,  for  the  benefit  and 
future  comfort  of  wife  and  children,  is 
liberally  considered  in  Gridle}'  v.  Wat- 
son, 53  111.  186;  Vance  v.  Smith,  2 
Heisk.  843;  Brookbank  v.  Kennard,  41 
Ind.  339;  White  v.  Bottis,  9  Heisk. 
645.  But  even  here  it  is  proper  that 
abundant  means  for  creditors  should 
be  reserved,  nor  should  such  a  settle- 
ment be  with  a  view  of  incurring  debts 
in  the  future.  Allen  v.  Walt,  9  Heisk. 
242. 

For  instances  where  a  husband's 
voluntary  conveyance  to  his  wife  has 
been  set  aside  as  in  fraud  of  creditors, 
see  Clarke  v.  McGeilian,  25  N.  J.  Eq. 
423 ;  Watson  v.  Riskamire,  45  Iowa, 
231  ;  Annin  v.  Annin,  24  N.  J.  Eq.  184. 
See  further,  Davidson  v.  Lanier,  51  Ala. 
318 ;  Bowser  v.  Bowser,  82  Penn.  St. 
57  ;  Nippes's  Appeal,  75  Penn.  St.  472. 


"  Fraud,"  observes  Mr.  Justice 
Swayne  in  a  recent  case,  "  is  always  a 
question  of  fact  with  reference  to  the 
intention  of  the  grantor.  Where  there 
is  no  fraud,  there  is  no  infirmity  in  the 
deed.  Every  case  depends  upon  its 
circumstances  and  is  to  be  carefully 
scrutinized.  But  the  vital  question  is 
always  the  good  faith  of  the  transac- 
tion. There  is  no  other  test."  Lloyd 
V.  Fulton,  91  U.  S.  Supr.  479.  In  this 
case  it  was  held  that  the  husband's 
prior  indebtedness,  apart  from  insol- 
vency, &c.,  was  only  presumptive,  and 
not  conclusive,  proof  of  fraud,  and  that 
the  presumption  was  open  to  explana- 
tion. And  see  Patrick  v.  Patrick,  77 
111.  555;  Booker  v.  Worrill,  55  Ga.  332; 
Kaufman  v.  Whitney,  50  Miss.  103. 
Yet  transfers  to  the  wife  of  an  insol- 
vent debtor,  and  even  purchases  by  her, 
are  justly  regarded  with  suspicion; 
and  consideration  from  her  separate 
estate  must  be  established  by  affirma- 
tive proof.  Seitz  v.  Mitchell,  94  U.  S. 
Supr.  580;  Kehr  v.  Smith,  20  Wall.  31. 

As  to  a  settlement  in  favor  of  minor 
children,  &c.,  see  Schoul.  Hus.  &  Wife, 
§  378. 

1  Lord  Harflwicke,  in  Ambl.  121. 
See  further,  Macq.  Hus.  &  Wife,  277 ; 
3  Vern.  220;  Ward  v.  Shallet,  2  Yes. 
Sen.  17 ;  Lavender  v.  Blackstone,  2 
Lev.  147 ;  Arundell  v.  Phipps,  10  Ves. 
140. 

-  Peachey  Mar.  Settl.  23-3,  238; 
Butterfield  v.  Heath,  15  Beav.  414; 
Bayspoole  v.  Collins,  L.  R.  6  Ch.  228 ; 
Ex  parte  Fox,  L.  R.  1  Ch.  D.  302 ; 
Schoul.  Hus.  &  Wife,  §  381. 

3  Peachey  Mar.  Settl.  236 ;  1  Sid. 
133;  Brown  v.  Carter,  5  Ves.  877. 

259 


188 


THE   DOMESTIC   RELATIONS. 


[part  II. 


In  this  countrj'',  as  also  in  England,  a  voluntary  settlement 
by  a  husband  upon  his  wife  may  become  valid  by  matter  sub- 
sequently arising.!  The  rule  is  general  that,  where  any  mar- 
riage settlement  is  for  a  valuable  consideration,  it  cannot  be 
avoided  as  fraudulent  upon  the  creditors,  unless  both  husband 
and  wife  were  cognizant  of  the  fraud  ;  her  position  here  being 
the  usual  one  of  bona  fide  purchaser  for  value.^  And  in  nu- 
merous instances  the  equity  courts  of  various  States  have 
sustained  a  postnuptial  gift  or  transaction  in  the  wife's  favor 
and  against  the  husband's  creditors,  on  the  ground  that  a 
valuable  consideration  was  interposed.^ 


1  4  Kent  Com.  463 ;  Sterry  v.  Ar- 
den,  1  Johns.  Cli.  261 ;  Huston  v.  Can- 
trill,  11  Leigh,  136. 

2  Magniac  v.  Thompson,  7  Pet.  348 ; 
4  Kent  Com.  463.  The  connection  be- 
tween prior  and  subsequent,  so  as  to 
sustain  the  consideration,  should  be 
shown.  Cheatham  v.  Hess,  2  Tenn. 
Ch.  763. 

3  As  where  the  husband  has  trans- 
ferred property  to  his  wife  in  considera- 
tion of  payment  from  lier  separate 
estate.  Simmons  v.  McElwain,  26 
Barb.  420 ;  Bullard  v.  Briggs,  7  Pick. 
533;  Ready  v.  Bragg,  1  Head,  611. 
And  see  Teller  v.  Bishop,  8  Minn,  226  ; 
Butterfield  v.  Stanton,  44  Miss.  15; 
Randall  v.  Lunt,  51  Me.  246  ;  Reich  v. 
Reich,  26  Minn.  97  ;  Mix  v.  Andes  Ins. 
Co.,  16  N.  Y.  Supr.  397.  And  where  he 
conveys  what  her  equity  entitles  her  to 
claim.  Poindexter  v.  Jeffries,  15  Gratt. 
363.  And  where  he  has  appropriated 
a  like  amount  of  his  wife's  property 
without  her  consent.  Wiley  v.  Gray, 
36  Miss.  510.  So  where  the  wife  pays 
her  husband's  debts  from  her  separate 
earnings.  Dygert  v.  Remerschneider, 
39  Barb.  417.  Or  releases  her  dower 
or  homestead.  Unger  i'.  Price,  9  Md. 
552  ;  Randall  v.  Randall,  37  Mich.  563 ; 
Randies  v.  Randies,  63  Ind.  93 ;  Nalle 
V.  Lively,  15  Fla.  130  ;  Payne  v.  Hutche- 
son,  32  Gratt.  812  ;  Garlick  v.  Strong, 
3  Paige,  440;  Hale  v.  Plummer,  6  Ind. 
121 ;  Andrews  v.  Andrews,  28  Ala.  432. 
Or,  in  general,  releases  her  interest  in 

260 


his  property.  Davis  v.  Davis,  25  Gratt. 
587.  Or  advances  money  to  the  hus- 
band to  buy  land,  even  though  it  be 
conditioned  upon  paying  and  securing 
the  money  to  her  children.  GoflF  v. 
Rogers,  71  Ind.  459.  Or  where  the 
husband  is  indebted  to  her  for  rents 
collected  from  her  separate  real  estate. 
Barker  v.  Morrill,  55  Ga.  332;  Kauf- 
man V.  Whitney,  50  Miss.  103.  Or 
upon  any  debt  due  her.  French  v.  Mot- 
ley, 63  Me.  326  ;  Brigham  v.  Fawcett, 
42  Mich.  542 ;  Lahr's  Appeal,  00  Penn. 
St.  -507.  Or  a  claim,  generally,  which 
grows  out  of  the  husband's  appropria- 
tion of  his  wife's  separate  estate,  if 
founded  on  an  agreement  to  refund. 
Odend'hal  c.  Devlin,  48  Md.  439.  See 
also  Johnston  v.  Gill,  27  Gratt.  587  ; 
Thompson  v.  Feagin,  60  Ga.  82 ;  Be- 
dell's Appeal,  87  Penn.  St.  510.  But 
not  a  claim  for  the  husband's  mere  ap- 
propriation, without  any  such  agree- 
ment to  refund.  Clark  v.  Rosenkrans, 
31  N.  J.  Eq.  665.  See  also  Rose  v. 
Brown,  11  W.  Va.  122.  And  see  Schoul. 
Hus.  &  Wife,  §  380. 

But  where  the  consideration  ad- 
vanced by  the  wife  is  inadequate, 
equity  will  never  sustain  the  settle- 
ment further  than  to  secure  the  repay- 
ment thereof,  and  not  always  even  to 
this  extent ;  especially  if  she  be  privy, 
with  her  husband,  to  a  fraud  upon 
others.  Herschfeldt  i-.  George,  6  Mich. 
456;  Skillman  v.  Skillman,  2  Beasl. 
403 ;  Farmers'  Bank  v.  Long,  7  Bush, 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  189 

§189.  Postnuptial  Settlements  as  between  the  Spouses. — 
The  effect  of  a  postnuptial  settlement,  as  between  the  parties 
themselves,  and  independently  of  the  rights  of  creditors  and 
purchasers,  claims  our  further  attention  for  this  chapter. 
Although  a  direct  gift  of  property  by  the  husband  to  the 
wife  is  void  at  law,  it  will  be  sustained  in  equity,  so  far 
as  they  are  concerned  and  heirs  and  jDcrsonal  representa- 
tives and  assigns.  In  general,  to  constitute  a  voluntary 
gift  between  parties,  it  must  be  complete,  or  courts  of  equity 
will  not  enforce  it ;  and  not  only  must  the  intention  to  give 
clearly  appear,  but  that  intention  must  have  been  executed.^ 
But  the  rule  is  more  favorable  as  to  a  cestui  que  trust  claim- 
ing against  his  trustee  ;  ^  and  it  is  thus  perceived  why,  on 
general  principles,  the  intervention  of  a  trustee  is  pref- 
erable to  support  such  a  settlement.  All  voluntary  con- 
veyances, though  void  against  creditors  and  purchasers  for 
value,  are  good  against  the  grantor  and  those  claiming  under 
him.^ 

A  voluntary  promise  does  not  constitute  a  perfect  gift. 
Nor  is  a  voluntary  assignment,  unaccompanied  by  other  acts, 
more  effectual  to  confer  a  title  on  the  donee  than  a  mere 
agreement,  as  it  has  been  repeatedly  held  in  equity.*  But 
there  is  some  difficulty  in  reconciling  the  authorities  on  this 
latter  subject.^ 

It  has  been  repeatedly  held,  in  chancery  courts  of  the 
United  States,  that  gifts  of  personal  property  or  voluntary 
conveyances  of  real  estate  from  husband  to  wife  are,  as  be- 

337  ;  Den  v.  York,  13  Ired.  206;  Pusey  Peacliey  Mar.  Settl.  245,  246  ;  Meek  v. 

V.  Harper,  27  Penn.  St.  469;   2  Kent  Kettlewell,  1  Hare,  470;  Kekewich  r. 

Com.  174 ;  William  &  Mary  College  v.  Manning,  1  De  G.  M.  &  G.  192  ;  Beech 

Powell,  12    Gratt.  372  ;    supra,   c.    12 ;  v.  Keep,  18  Beav.  289. 
Coates  V.  Gerlach,  44  Penn.  St.  43.  3  Bill  v.  Cureton,  2  Myl.  &  K.  510; 

Statutory     requirements,    such    as  Doe  v.  Rusham,  17  Q.  B.  724. 
registry,   may   affect    postnuptial   set-  *  Edwards  c.  Jones,  1  M.  &  Cr.  226; 

tlements    as   to    creditors.      And    see  Holloway  v.  Headington,  8  Sim.  324. 
other  relative  points,  Schoul.  Hus.  &         5  gee   Bridge  v.  Bridge,   16  Beav. 

Wife,  §§  380,  381.  321 ;   McFaddyn  v.  Jenkyns,  1    Hare, 

1  Cotteen  v.  Missing,  1  Madd.  176 ;  462  ;  Peacliey  Mar.  Settl.  247,  248 ; 
Kekewich  v.  Manning,  1  De  G.  M.  &  Penfold  v.  Mould,  L.  R.  4  Eq.  562 ; 
G-  188.  Schoul.   Hus.   &  Wife,  §   384 ;  Fox  v. 

2  Ellison    V.  Ellison,   6    Ves.   662  ;  Hawks,  L.  R.  13  Ch.  I).  822. 

261 


§190 


THE   DOMESTIC   RELATIONS. 


[part   II. 


tween  themselves,  valid,  and  such  is  now  the  rule  in  most, 
but  not  all,  of  the  States  ;  the  married  women's  acts  in  some 
jurisdictions  creating  a  legal  estate  in  the  wife  under  such 
circumstances.  The  evidence  of  intention  should  be  clear 
and  distinct  in  all  such  cases.^  There  should  be  a  clear  irrev- 
ocable gift  to  a  trustee  for  the  wife,  or  some  positive  act  by 
the  husband,  by  which  he  divests  himself  of  the  property,  and 
engages  to  hold  it  for  the  wife's  separate  use.^ 

§  190.  The  Same  Subject.  —  But  the  circumstances  under 
which  the  husband's  transfer  is  made  are  always  material. 
Thus  a  husband  might  have  placed  his  earnings  or  property 
in  his  wife's  hands  for  safe-keeping,  and  not  as  a  gift  to  her, 


1  Borst  V.  Spelman,  4  Comst.  284 ; 
Coates  V.  Gerlach,  44  Penn.  St.  43  ;  Jen- 
nings r.  Davis,  31  Conn.  134;  George 
V.  Spencer,  2  Md.  Ch.  Sbo ;  Reynolds 
V.  Lansford,  16  Tex.  286;  Hunt  v. 
Johnson,  44  N.  Y.  27  ;  Sims  v.  Rickets, 
35  Ind.  181 ;  Kitchen  v.  Bedford,  13 
Wall.  413;  Campbell!;.  Galbreath,  12 
Bush,  459. 

2  But  see  Towle  v.  Towle,  114  Mass. 
167.  As  to  a  gift  causa  mortis,  see  post, 
cs.  15-17. 

It  would  appear  to  be  the  rule  of 
some  States,  that  the  gifts  of  a  hus- 
band require  less  proof  than  the  gifts 
of  third  persons.  Deming  v.  Williams, 
26  Conn.  226.  In  some  States,  how- 
ever, the  wife  is  put  upon  strict  proof 
as  to  all  implied  gifts.  Gannard  v. 
Eslava,  20  Ala.  733  ;  Paschall  v.  Hall,  5 
Jones  Eq.  108 ;  HoUifield  v.  Wilkinson, 
54  Ala.  275.  The  precise  extent  to 
which  the  rule  of  a  gift  without  a  trus- 
tee will  be  enforced  depends  greatly 
upon  the  liberality  of  the  married 
women's  legislation  in  any  particu- 
lar State.  See  Schoul.  Hus.  &  Wife, 
§  385  ;  Underbill  v.  Morgan,  .33  Conn. 
105;  Brown  !\  Brown,  23  Barb.  565; 
Jennings  v.  Davis,  31  Conn.  134  ;  Wil- 
der V.  Aldrich,  2  R.  I.  518.  But  it  is 
said  that  a  man  cannot  denude  him- 
self of  bis  marital  rights  in  property 
which  the  law  vests  in  liim  by  simply 
declaring  that  it  belongs   to  his  wife. 

262 


Wade  V.  Cantrell,  1  Head,  346.  For 
the  principles  JippHcable  to  such  gifts, 
see  2  Sch.  Pers.  Prop.  Part.  V.  c.  2. 
Thus  the  promissory  note  of  a  creditor 
or  other  third  party  may  thus  be  legally 
transferred  by  the  husband  to  his  wife 
under  some  of  the  married  women's 
acts  ;  and  independently  of  such  stat- 
utes on  equitable  grounds.  His  volun- 
tary settlement  of  choses  or  incorporeal 
personalty  upon  her  is  good,  prima 
facie ;  and  this  may  include  an  assign- 
ment of  a  claim  due  him.  The  hus- 
band may  make  a  gift  to  his  wife  if 
depositing  in  some  savings  bank  on  his 
wife's  separate  account,  by  his  acts 
binding  the  bank  to  account  to  her. 
Leaseliold  property  may  be  assigned 
to  the  wife  by  way  of  gift.  Where 
the  luisband  gives  corporeal  property 
there  should  be  some  visible  change  of 
possession  manifested  ;  and  in  gifts,  as 
of  furniture,  of  that  which  remains  in 
the  common  dwelling-house,  there  may 
be  difBculty  in  establishing  a  transfer. 
The  wife  may  be  the  grantor,  under 
due  statutory  formalities,  of  real  estate 
from  her  husband,  or  of  real  and  per- 
sonal property  combined.  Rents  and 
profits  may  be  secured  to  her  exclusive 
beneficial  use.  But  to  prove  the  exe- 
cuted gift,  so  as  to  establish  a  bona  fide 
transfer  against  the  husband's  cred- 
itors, involves,  of  course,  the  greater  dif- 
ficulty. See  Schoul.  Hus.  &  Wife,  §386. 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  190 

in  which  case  title  to  the  fund  should  be  respected  accord- 
ingly as  between  them  ;  or  it  might  be  regarded,  perhaps,  as 
bestowed  for  their  joint  benefit  or  that  of  the  whole  family 
upon  due  proof.  Or  the  understanding  might  be  that  tlie 
transaction  was  to  stand  upon  mutual  consideration  or  by 
way  of  security.^ 

While  instances  of  gifts  or  voluntary  conveyances  from 
husband  to  wife  are  most  commonly  considered,  gifts  from 
wife  to  husband  are  by  no  means  rare.  But  in  the  latter 
instance  fraud  or  undue  influence  may  be  reasonably  sus- 
pected ;  and  transactions  of  this  sort  are  scrutinized  by  the 
courts  with  great  care.^  Before  the  wife's  separate  use  was 
established  in  chancery,  little  or  no  occasion  could  arise  for 
the  wife  to  bestow  her  personal  property  upon  lier  husband, 
for  the  law  sufiiciently  bestowed  it  without  her  aid. 

If  husband  and  wife  may  transfer  property  to  one  another 
without  consideration,  still  more  may  they  do  so  where  the 
consideration  is  valuable.  All  such  provisions,  even  if  made 
without  the  intervention  of  a  trustee,  though  void  in  law 
(independently  of  suitable  married  women's  acts),  may  be 
enforced  in  equity  if  fairly  made  between  the  parties,  and 
with  no  fraudulent  intent  upon  others  concerned;^  a  rule 
which,  with  particular  force,  sustains  an  indebted  husband's 
provision  in  his  wife's  favor,  wholly  or  partially  executed."* 

1  Marshall  v.  Crutwell,  L.  11.  20  *  See  sjipi-a,  §  188.  And  see  Grouse 
Eq.  328  ;  Adlard  v.  Adlard,  6-5  111.  212 ;     v.  Morse,  49  Iowa,  382. 

Edgerly   v.   Edgerly,    112   Mass.    175;  *  The   husband's   note   or   bond    to 

Grain  v.  Shipnian,  45  Conn.  572  ;  Lin-  pay  money   in   consideration  that  his 

ker  V.  Linker,  32  N.  J.  Eq.  174.     See  wife' would  live  with  him  is  not  a  good 

further,    Schoul.   Hus.  &  Wife,  §  388.  consideration.     Roberts   v.   Frisl)y,    38 

The  husband's    gift  may  be  qualified  Tex.   219 ;  Ximines   v.  Smith,  39  Tex. 

instead  of  absolute,  as  in  other  instan-  49.     Nor   prior   advances   to   the   wife 

ces  of  gift.    Jones  v.  Clifton,  101  U.  S.  disconnected  with  the  settlement,  and 

Supr.  225.  made   without    expectation    of  repay- 

2  Cruger  i-.  Douglas,  4  Edw.  Ch.  ment.  Perkins  v.  Perkins,  1  Tenn.  Ch. 
433;  Nedby  y.  Nedby,  11  E.  L.  &  Eq.  537.  But  where  the  wife  advances 
106 ;  Be  Jones,  G  Biss.  68 ;  Converse  v.  money  to  her  husband  as  his  cred- 
Converse,  9  Rich.  Eq.  535 ;  Stiles  v.  itor,  or  the  latter  is  indebted  to  her 
Stiles,  14  Mich.  72 ;  Hollis  v.  Francois,  upon  any  valid  consideration,  a  fair 
5  Tex.  195  ;  Wales  v.  Newbould,  9  Mich,  conveyance  or  transfer  may  be  made  to 
45.  As  to  gifts  and  loans  of  the  wife's  adjust  or  secure  such  liability.  Kesner 
separate  property  to  her  husband,  in-  v.  Trigg,  98  U.  S.  Supr.  50 ;  Clougli  );. 
eluding  mortgages,  see  also  supra,  §  155.  Russell,  55  N.  H.  279  ;  Sims  v.  Rickets, 

263 


§  191  THE   DOMESTIC   KELATIONS.  [PART    II. 

The  common-law  requirement  that  trustees  shall  intervene 
in  conveyances  or  transfers  between  husband  and  wife  no 
longer  prevails  to  any  great  extent,  in  England  or  the  United 
States,  as  a  doctrine  of  equity.^  But  trustees  are  always 
desirable  ;  and  in  some  States  it  is  a  rule  that  the  husband 
and  wife  can  only  contract  with  one  another  through  the  in- 
tervention of  third  persons.^ 

§  191.  General  Transactions  bet-wreen  Husband  and  "Wife. — 
In  general,  wherever  a  contract  is  just  and  reasonable  of  itself, 
and  would  be  good  at  law  when  made  with  trustees  for  the 
wife,  that  contract  will  be  sustained  in  equity,  when  made 
between  husband  and  wife  without  the  intervention  of  trus- 
tees,^ notwithstanding  that  at  common  law  spouses  could  not 
make  mutual  contracts.^  But  as  to  a  wife,  her  contract  preju- 
dicial to  her  interests  is  still  so  unfavorably  regarded,  that  a 
statute  must  be  explicit  in  order  to  bind  her  as  to  her  execu- 
tory contracts  or  general  engagements  with  her  husband. 
The  married  women's  acts,  as  yet,  seldom  permit  of  a  wife's 
executory  contracts  with  any  one  outside  her  separate  estate 
or  separate  trade.^     But  whatever  the  law  will  compel  parties 

35  Ind.  181 ;  Schoul.  Hus.  &  Wife,  §  391,  Style,  3  P.  Wms.  334  ;  Barron  v.  Bar- 

and   oases   cited.     Releases   of  dower  ron,  24  Vt.  375 ;  Resor  v.  Resor,  9  Ind. 

in  husband's   lands   may  furnish  con-  347  ;   Coates  v.  Gerlach,  44  Penn.    St. 

sideration.     Sykes    v.    Chadwick,    18  43  ;   Wright  v.   Wright,  16   Iowa,  496 ; 

Wall.  141  (a  statute  case).  Williams  r.  Maull,  20  Ala.  721 ;  Schaffer 

As  to  transfers  out  of  all  proportion  v.   Reuter,    37    Barb.    44;    Ilutton    v. 

to  the  consideration,    and   apparently  Duej'^,  3  Barr,   100;   Sims  v.   Rickets, 

fraudulent,  see  Kelley  v.  Case,  18  Hun.  35  Ind.  181  ;  McCampbell  v.  McCamp- 

472 ;   Warren   v.  Ranney,  50   Vt.  653.  bell,    2  Lea,   6G1 ;   Myers  v.  Khig,  42 

And  for  contracts  of  this  kind,  specifi-  Md.  65. 

cally  enforced,  see  Livingston  v.  Living-  *  A  mutual  agreement,  by  which  the 

ston,  2  Johns.  Ch.  537.  wife  renounces  all  further  claim  upon 

1  Jones  V.  Clifton,  101  U.  S.  Supr.  the  husband  for  his  services,  or  neces- 
225;  Baddeley  v.  Baddelcy,  26  W.  R.  sary  support  for  herself,  and  stipulates 
850  ;  Thomas  v.  Harkness,  13  Bush,  23.  that  she  will  contract  no  debts  on  his 

2  McMuUen  v.  McMulien,  10  Iowa,  account,  while  the  husband  renouncea 
412 ;  Johnston  v.  Johnston,  1  Grant,  all  claim  for  her  services  or  support, 
468 ;  Pike  y.  Baker,  53  111.  163 ;  Row-  affords  a  strong  illustration.  This 
land  V.  Plummer,  50  Ala.  182.  See  might  not  avail  against  creditors,  but 
further,  Sohoul.  Hus.  &  Wife,  §  392,  so  far  as  the  husband  and  his  heirs, 
393,  as  to  the  rectification  and  construe-  and  in  fact  all  who  claim  under  him, 
tion  of  such  settlements.  are  concerned,  it  will  be  enforced.  Bar- 

3  Wallingsford  v.  Allen,  10  Pet.  583 :  ron  v.  Barron,  24  Vt.  375. 

2  Story  Eq.  Juris.  §  1204;  Slanning  v.         ^  Bassett  v.  Bassett,  112  Mass.  99; 

264 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  "193 

to  do,  they  may  do  voluntarily;  and  this  is  a  principle  appli- 
cable to  transactions  as  between  husband  and  wife,  so  far  as 
equity  may  exercise  jurisdiction  in  the  case.^ 

§  192.  Transfer  of  Note  from  one  Spouse  to  the  Other ;  Con- 
veyance. —  A  wife  is  not  legally  liable,  in  the  absence  of  an  ena- 
bling statute,  upon  a  promissory  note  made  by  her,  payable  to 
her  husband's  own  order,  and  by  him  indorsed  over.^  And 
the  husband's  note,  given  to  his  wife  and  transferred  by  her,  is 
equally  void.^ 

A  conveyance,  by  husband  and  wife,  of  land  belonging  to 
the  wife,  to  a  third  person,  and  a  conveyance  of  the  same 
land  by  such  third  person  to  the  husband,  vests  the  entire 
title  in  the  husband.'*  But  a  conveyance  of  lands  by  the 
wife  directly  to  her  husband,  especially  if  it  be  voluntary, 
has  been  considered  ineffectual  and  void.  So  it  is  the  older 
rule  that  the  husband  cannot  convey  real  estate  to  his  wife 
directly,  and  without  the  intervention  of  a  trustee.^  But  the 
husband  may  make  a  valid  conveyance  to  his  wife  through 
the  medium  of  a  third  person.^ 

The  reason  of  this  rule  was  the  legal  unity  of  husband  and 
wife  at  the  common  law ;  while  the  statutes  of  uses  furnished 
a  mode  of  conveyance  through  trustees.'^ 

§  193.  Conveyances  or  Transfers  to  Husband  and  Wife ;  Effect. 
—  It  may  here  be  added  that,  at  the  common  law,  a  convey- 
ance of  land  to  husband  and  wife  and  their  lieirs  vests  the 
entirety  in  each  of  them  ;  and  upon  the  death  of  one  the  sur- 
vivor takes  the  whole  estate,  discharged  of  the  other's  debts.^ 

Hogan  V.  Hogan,  89  111.  427 ;  -Jenne  v.  4  Merriam   v.  Harsen,   4  Edw.   Ch. 

Marble,  37  Mich  319.     Some  statutes  70;    Duranfc  v.  Ritcliie,  4   Mason,  45; 

are  explicit  enough  for  such  purposes.  Garvin  y.  Ingram,  10  Tlich.    Eq.   130, 

Hamilton  v.  Hamilton.  89  111  349.  And  Bowen  v.  Sebree,  2  Bush,  112. 

see  Schoul.  Hus.  &  Wife,  §  394  and  ap-  5  Voorhees  v.  Presbyterian  Church, 

pendix.  17  Barb.   103;   Ransom  z;.  Ransom,  30 

1  SeeCampbelU'.  Galbreath,  12  Bush,  Mich.  328. 

459;  Randall  ('.  Randall,  37  Mich.  563.  6  Schoul.     Hus.    &     Wife,    §     397. 

"  Roby  V.  Phelon,  118  Mass.  541  Under  some  late  local  acts  a  wife  may 

3  Hoker  v.  Boggs,  63  111.  161 ;  Mor-  convey  directly  to  her  husband,  or  the 

rison  v.  Thistle,  67  Mo.  596 ;  Greer  v.  husband  to  the  wife.     lb. 

Greer,  24   Kan.    101  ;   McCampbell  v.  i  1  Washb.  Real  Prop.  279. 

McCampbell,  2  Lea,  G61.     This  rule  is  »  Wright  v.  Sadler,  20  N.  Y.  320; 

nov»^    clianged   in    many   States.     See  Banton  v.  Campbell,  9  B.  Monr.    587 ; 

Schoul.  Hus.  &  Wife,  §  396.  Gilson  v.  Zimmerman,  12  Mo.    385 ; 

265 


§  194  THE    DOMESTIC   KELATIONS.  [PART    II' 

The  estate  of  entirety  may  be  conveyed  in  fee  or  encumbered 
by  the  joint  deed  of  husband  and  wife.^  And  in  some  States 
legislation  has  abrogated  this  common-law  doctrine  of  entirety 
altogether.2 

Where  a  promissory  note,  too,  or  other  evidence  of  a  debt, 
or  personal  securit}^  is  made  payable  to  a  husband  and  wife 
jointly,  it  belongs  to  the  survivor,  and  ma}'-  be  sued  upon 
accordingly ;  but  not  if  the  facts  are  inconsistent  with  that 
presumption  of  joint-ownership  which  a  technical  expression 
of  this  sort  would  afford  ;  and  the  drift  of  modern  policy,  we 
may  add,  is  unfavorable  to  extending  to  personalty  this  rule 
of  survivorship,  applicable  originally  to  real  estate."^ 

§  194.  Questions  of  Resulting  Trust  between  Husband  and 
"Wife.  —  The  question  whether  a  resulting  trust  is  established 
in  certain  property  of  husband  or  wife  comes  up  constantly 
in  the  latest  American  cases,  with  the  extension  of  equity 
jurisdiction  in  the  States  and  the  new  married  women's  legis- 
lation. Issues  of  this  sort  are  made  up  not  only  where  the 
claim  is  that  of  a  wife  against  her  husband,  or  of  a  husband 
against  his  wife,  but  in  controversies  between  either  one  and 
the  creditors  of  the  other.  The  decision  must  be  according 
to  the  evidence  adduced,  which  is  usually  oral,  deference  be- 
ing paid  to  the  usual  presumptions  as  between  husband  and 
wife  ;  but  the  ostensible  title  afforded  by  instruments  of  title 
or  security  standing  in  the  name  of  the  one  is  thus  overthrown 
by  proof  that  the  property  actually  belonged  by  right  to  the 
other.* 

Equity,  in  recognizing  husband  and  wife  as  distinct  per- 
sons capable  of  contracting    with  one  another  and    holding 

Schoul.  Hus.  &  Wife,  §  398,  where  this  State,  53  Ind.  64;  Sanford  v.  Sanford, 

subject  is  considered  at  length.  45  N.  Y.  723 ;  Johnson  v.  Lusk,  G  Cold. 

1  McUufi'  V.   Beauchamp,  50   Miss.  113. 

531.     See  Insurance  Co.  v.  Nelson,  103  '  Wait  v.  Bovee,  35  Mich.  425.    As 

U.  S.  Supr.  514.  to  joint  investments  by  husband  and 

2  And  thus  may  the   spouses  be  re-  wife,   and   their    joint    liabilities,    see 

garded  as  joint  tenants  or  rather  tenants  Schoul.  Hus.  &  Wife,  §  400. 

in  common.     Cooper  v.  Cooper,  76  III.  *  See  Schoul.   Hus    &  Wife,  §  400, 

57  ;  Whittlesey  v.  Fuller,  11  Conn.  337  ;  and  cases,  where  this  subject  is  further 

Clark  V.  Clark,  56  N.  H.  105  ;  Meeker  discussed.     And  see  ib.  §  401,  as  to  pur- 

f.  Wright,   76  N.  Y.  262;   Abshire  v.  chases  of  one  anothei-'s  property. 

266 


CHAP.  XV.]  HUSBAND   AS   SURVIVOR.  §  190 

property  adverse  to  one  another's  claims,  affords  the  relief 
appropriate  to  such  a  situation.  Where  either  one  is  false  to 
the  other,  and  fraudulently  or  through  coercion  procures  an  un- 
just advantage,  chancery  will  relieve  against  the  tiansaction.^ 
§  195.  Insurance  upon  Husband's  Life.  —  Insurance  is  fre- 
quently effected  by  a  husband  on  his  own  life  for  the  separate 
benefit  of  his  wife  ;  a  provision  most  just  and  honorable,  if 
not  so  unreasonable  in  amount,  with  its  incidental  j^ajanent  of 
premiums,  as  to  defraud  one's  antecedent  creditors.^ 


CHAPTER  XV. 


DEATH    OF    THE    WIFE  ;   RIGHTS    AND    LIABILITIES    OF    THE 
SURVIVING   HUSBAND. 

§  196.  Husband's  Right  to  Administer.  —  On  the  death  of 
the  wife,  the  husband  becomes  entitled  to  administer  on  her 
estate.  The  court  having  jurisdiction  in  such  matters  must 
issue  letters  to  him,  and  to  him  alone,  unless  he  renounce 
or  decline.  The  foundation  of  this  claim  has  been  variously 
stated  ;  by  some  it  is  said  to  be  derived  from  the  statute  31 
Edw.  Ill,,  on  the  ground  of  the  hu.sband's  being  "  the  next 
and  most  lawful  friend  "  of  his  wife  ;  while  there  are  other 
authorities  which  insist  that  the  husband  is  entitled  at  com- 
mon law,  jure  mariti,  and  independently  of  the  statutes. 
But  this  right,  however  founded,  is  now  regarded  in  Eng- 
land as  unquestionable,  and  is  expressly  confirmed  by  the 
statute  29  Car.  II.  c.  3  (amendatory  of  statute  22  &  23  Car. 
II.  c.  10),  which  enacts  that  the  statute  of  distributions 
"  shall  not  extend  to  the  estates  of  femes  covert  that  shall  die 
intestate,  but  that  their  husbands  may  demand  and  have 
administration   of  their   rights,   credits,  and  other  personal 

1  Case  V.  Colter,  66  Ind.  336  ;  Stone         2  Schoul.  Hus.  &  Wife,  §  404.     Stat- 
ic. Wood,  85  111.  603  ;  Tucker's  Appeal,  utes  affect  this  right  in   nearly  all  of 
75  Penn.  St.  854 ;  Schoul.  Hus.  &  Wife,  the  States.     lb.  appendix. 
§§  389,  403. 

267 


§  197  THE  DOMESTIC   EELATIONS.  [PART   U. 

estates,  and  recover  and  enjoy  the  same  as  they  might  have 
done  before  the  making  of  the  said  act."  ^  Tliis  same  right 
of  the  husband  is  generally,  though  not  universally,  recog- 
nized in  this  country,  and  in  the  different  States  there  are 
statutes  which  regulate  the  subject  of  administration  ;  and 
these  statutes  are  usually  found  to  recognize  and  confirm  the 
husband's  preferred  right  to  administer  upon  his  wife's  estate.^ 

To  this  rule  some  exceptions  have  been  introduced,  how- 
ever, in  later  years,  both  in  England  and  the  United  States, 
owing  chiefly  to  the  modern  facilities  for  separation  and 
divorce,  and  the  enlarged  capacity  given  to  the  wife  to  act  as 
a  feme  sole,  and  to  dispose  of  her  own  property.^ 

Shice,  as  we  have  already  seen,  the  husband  takes  abso- 
lutely his  wife's  personal  cJioses  in  possession  at  the  common 
law  by  virtue  of  the  marriage,  and,  if  he  be  the  survivor,  her 
chattels  real  likewise,  there  would  generally  appear  to  be  no 
object  gained  in  seeking  letters  of  administration  on  her 
estate,  under  the  coverture  doctrine,  unless  she  had  choses  in 
action  unrecovered  at  the  time  of  her  death.  But  a  case 
might  arise,  besides,  where  he  had  a  just  claim  against  her 
estate,  and  wished  to  enforce  it  by  a  sale  of  her  real  estate  as 
administrator.  Or  he  might  intend  to  prosecute  a  suit.  Or 
letters  of  administration  might  be  desirable  for  the  purposes 
of  creditors.  And  peculiar  considerations  apply  sometimes, 
as  we  shall  presently  see,  to  what  we  term  the  wife's  separate 
property,  even  after  her  death.  Cases,  moreover,  in  these 
days  are  found,  where  a  husband  is  made  the  executor  under 
his  wife's  will.^ 

§  197.  The  Same  Subject ;  Assets  for  Wife's  Debts.  —  There 
is  a  common-law  distinction  between  property  acquired  by 

1  Wms.  Ex'rs,  4th  Am.  ed.  336    et  rity,  without  citing  the  father.     Goods 

seq.  of  Stephenson,  L.  R.   1  P.   &  D.  285. 

2  2  Kent  Com.  135;  ib.  410.  And  in  this  country  the  marital  rights 

3  Thus,  in  a  late  English  case,  where  of  the  husband  over  the  wife's  unad- 
a  married  woman  lived  separate  from  ministered  property,  when  her  death  oc- 
her  husband,  after  having  obtained  an  curred  during  a  state  of  separation  for 
order  of  protection,  and  then  died,  his  misconduct,  have  been  sometimes  de- 
leaving him  and  a  minor  son,  admin-  nied.  Cooper  r.  Maddox,  2  Sneed,  135. 
istration  was  granted  to  a  guardian  *  Martin  v.  Foster,  38  Ala.  G88.  See 
elected  by  the  son,  upon  proper  secu-  Schoul.  Hus.  &  Wife,  Part  VIII.  c.  5. 

268 


CHAP.  XV.]  HUSBAND   AS   SURVIVOR.  §  198 

the  husband  absolutely  by  virtue  of  marriage,  and  property 
acquired  in  his  representative  capacity  as  her  administrator 
or  executor.  The  former  is  his  own,  free  from  all  demands 
of  his  wife's  creditors.  But  the  latter  comes  to  him  only  by 
way  of  distribution,  after  payment  of  all  just  debts  against 
his  wife's  estate.^  In  the  case  of  an  antenuptial  debt,  he 
who  married  the  woman  indebted  became  responsible  under 
qualifications,  ceasing  to  be  responsible,  however,  upon  his 
wife's  decease.^  Debts  contracted  by  the  Avife  during  mar- 
riage follow  a  somewhat  different  rule  at  the  common  law; 
for  either  they  are  the  debts  of  the  husband  or  no  legal  debts 
at  all ;  ^  and  if  his  debts,  he  must  be  held  responsible  in  his 
personal,  and  not  a  fiduciary  capacity. 

The  modern  change  of  policy  with  regard  to  a  wife's  debts, 
whereby  the  wife  may  hold  separate  property  upon  which 
her  separate  liabilities  should  be  fastened,  occasions  an  obvi- 
ous departure  in  the  latest  decisions  and  statutes.  Hence 
the  statute  rule  now  introduced  into  many  States,  that  the 
husband  shall  be  held  liable  as  administrator  on  the  estate  of 
his  wife  for  her  debts,  only  to  the  extent  of  the  assets  re- 
ceived by  him.^ 

§  198.  Surviving  Husband's  Rights  in  Wife's  Personal  Prop- 
erty.— We  have  seen  that  at  the  common  law,  and  conforma- 
bly to  the  doctiine  of  coverture,  marriage  operates  as  a  gift 
to  the  husband  of  the  wife's  personal  property,  both  principal 
and  income,  whether  acquired  by  her  before  or  during  the 
marriage  state  ;  but  with  this  qualification,  that,   so  far  as 

1  A  notable  case  in  point  is  that  of  after  it  had  been  recovered,  tlio  creditor 

Heard    v.   Stamford,   where    a    single  should  be  satisfied  ;  but  that  no  claim 

woman  contracted  a  debt  for  which  she  could  be  enforced  against  the  former 

gave  her  promissory  note  of  £50.     She  portion.      Heard    v.    Stamford,     Cas. 

afterwards  married,  and  brought  to  her  temp.    Talb.    173;    3    P.    Wms.   409; 

husband   a  fortune  of  £700.     On  her  Macq.  Hus.  &  Wife,  188.    And  see  Het- 

death   it   appeared  that   the   husband  rick  v.  Hetrick,  13  Ind.  44 ;  Donning- 

had  acquired  a  portion  of  this  fortune  ton  v.  Mitchell,  1  Green  Ch.  243. 

during  coverture;    the    other    portion  ^  Supra,  §§  56,  57. 

was  still  outstanding  at  her  death  as  a  ^  ggg  jjjn  „  Goodrich,  46  N.  H.  41 ; 

chose  in  action,  and  could  only  be  re-  Bain  v.  Doran,  54  Penn.  St.  124 ;  supra, 

covered  by  the  late  husband  as  her  ad-  §  59. 

ministrator.     Lord   Chancellor  Talbot  *  See  N.  Y.  Rev.  Stat.  Vol.  II.  p.  75; 

decided  that  from  the   latter  portion,  Schoul.  Hus.  &  Wife,  appendix. 

269 


§  198  THE  DOMESTIC   RELATIONS.  [PART   II. 

choses  in  action  are  concerned,  or  incorporeal  personalty,  he 
must  reduce  to  possession  while  marriage  lasts,  in  order  to 
make  the  property  absolutely  his  own.^  Hence  choses  in  action 
unrecovered  at  her  death  belong,  technically  speaking,  to  her 
estate.  The  wife's  earnings  were  the  husband's  ;  ^  and  as  to  her 
chattels  real,  if  he  survived  her,  they  became  his  absolutely .^ 

In  these  days,  it  becomes  important  to  understand  how  far 
the  modern  creation  of  a  separate  estate  in  the  wife's  favor 
may  have  modified  this  doctrine  to  the  husband's  detriment. 
The  equitable  rule,  so  familiar  to  England,  has  been  that  the 
separate  use  ceases  with  the  marriage  state  ;  so  that,  subject 
to  the  restrictions  of  a  trust  under  which  the  wife  miglit  have 
acquired  any  specific  separate  property,  or  her  possible  dispo- 
sition of  separate  property  during  her  lifetime  (no  clause  of 
restraint  impeding  her),  the  surviving  husband  became  enti- 
tled to  whatever  was  left,  under  tlie  rules  and  subject  to  the 
limitations  of  the  common  law.  That  is  to  say,  as  to  personal 
property,  her  choses  in  jjossession  vested  in  him  absolutely, 
and  also  her  chattels  real,  while  choses  in  action  might  be 
recovered  for  his  benefit  in  due  course  of  administration.* 
The  United  States  rule  of  equity  appears  to  have  treated  the 
separate  estate  as  ceasing  upon  the  wife's  death  with  similar 
consequences.^  Generally  speaking,  both  in  England  and 
this  country,  the  fact  that  a  husband  allows  his  wife  to  treat 
and  deal  with,  as  her  own,  property  acquired  by  her  inde- 
pendently of  tlie  married  women's  acts,  is  not  inconsistent 
with  his  intention  to  assert  his  marital  rights  to  it  if  he  sur- 
vive ;  neither,  if  he  allows  her  to  dispose  of  the  income  and 
loan  it  on  promissory  notes  running  in  her  own  name,  would 
such  income  become  thereby  converted  into  her  separate 
estate.^  Moreover,  the  married  women's  acts  themselves,  in 
the  absence  of  unequivocal  language,  do  not  change  the  com- 
mon-law rule  with  reference  to  separate  personal  propert}'  of 
a  married  woman,  not  disposed  of  in  her  life  nor  by  will ;  but 

1  Schoul.  Hus.  &  Wife,  §  148.  <  Ih.  §  106.     And  as  to   real  estate, 

2  lb.  see  ib.  §  ino,  anrl  post,  §  201. 

3  76.  §  164.  6  Svpra,  §  -2?,^,. 

6  Ryder  v.  Hulse,  24  N.  Y. 
270 


CHAP.  XV.]  HUSBAND  AS   SURVIVOE.  §  198 

it  goes  to  her  surviving  husband  by  virtue  of  his  marital 
rights  in  the  same  manner  as  under  the  old  law.^ 

By  the  English  statutes  of  distribution,  therefore  (and  per- 
haps by  the  common  law),  not  only  is  the  husband  entitled  to 
administer  upon  his  wife's  estate  in  preference  to  all  others, 
but,  subject  to  the  payment  of  such  debts  as  bind  him  upon 
surviving  her,  he  recovers  her  outstanding  personal  property 
to  his  own  use  and  enjoyment,  including  rights  vested  and 
contingent,  and  funds  at  her  disposal  during  her  lifetime  or 
held  in  trust  for  her,  save  so  far  as  he  may  be  excluded  by 
the  terms  of  the  trust.  Even  if  he  does  not  take  out  let- 
ters of  administration,  he  is  equally  entitled  to  the  property .^ 
He  is  therefore  said,  when  he  administers,  to  administer  for 
his  own  benefit,  being  the  party  in  interest  preferred  to  all 
others,  so  far  as  personal  estate  is  concerned.  And  since  hus- 
band and  wife  are  not,  properly  speaking,  next  of  kin  to  one 
another,  the  title  the  husband  thus  acquires  may  be  desig- 
nated as  a  title  jure  mariti  under  the  statutes  of  distribution.^ 
But  with  the  modern  recognition  of  separate  use,  an  exer- 
cise of  the  wife's  testamentary  appointment  or  will  may  be 
found  to  interfere  with  the  husband's  rights  both  as  surviving 
administrator  and  distributee. 

Furthermore,  the  principle  that  the  husband  administers 
exclusively  for  his  own  benefit  on  his  wife's  estate  is  incom- 
patible with  the  legislation  of  some  States.  For  in  this  coun- 
try the  modern  tendency  is  not  only  to  enlarge  the  wife's 
power  of  testamentary  disposition,  but  to  require  administra- 
tion to  be  taken  out  in  all  cases  where  a  married  woman  with 
a  separate  estate  dies  intestate  ;  nor  is  the  surviving  husband 
in  all  the  States  absolutely  preferred  to  kindred  either  as 
administrator  or  distributee.* 

1  Eansom  v.  Nichols,  22  N.  Y.  110;  Sclioul.    Hus.  &  Wife,  §  409;  Cox  v. 

"Wilkinson  v.  Wright,  6  B.  Monr.  576 ;  Morrow,  14  Ark.  603  ;  Nelson  v.  Goree, 

Brown  u.  Brown,  6  Humph.  127.  34   Ala.   505;    Baldwin   v.  Carter,    17 

-  Clough  V.  Bond,  6  Jur.  50.  Conn.    201 ;     Curry   v.   Fulkinson,    14 

3  2  Bl.  Com.  515 ;  Watt  v.  Watt,  3  Ohio,  100 ;  Gill  v.  Woods,  81  111.  04  ; 

Ves.246,247;2KentCom.  136;Schoul.  Wilson    v.    Breeding,  50    Iowa,   629; 

Hus.  &  Wife,  §§  409,  414,  and  authori-  Woodman  v.  Woodman,  54  N.  H.  226. 
ties  cited.  Postnuptial     transactions    between 

*  Holmes   v.  Holmes,   28  Vt.   765 ;  husband  and  wife  give  rise  to  delicate 

271 


§  199  THE   DOMESTIC   RELATIONS.  [PAET  n. 

§  199.  Husband's  Obligation  to  bury  Wife:  Rights  correspond- 
ing. —  Every  husband  is  bound,  at  the  common  law,  to  bury 
his  deceased  wife  in  a  suitable  manner  ;  that  is  to  say,  he  is 
bound  to  defray  all  necessary  funeral  expenses.  Even  when 
a  wife  dies  who  had  been  living  separate  from  her  husband, 
it  is  held  that  her  surviving  husband  must  provide  her  Avitli  a 
funeral  at  a  reasonable  expense ;  and,  if  he  neglects  to  do  so, 
any  person  who  voluntarily  employs  an  undertaker  for  that 
purpose,  and  pays  him  for  his  services,  is  entitled  to  recover 
the  sum  thus  expended  from  the  husband  in  an  action  at 
law.^  So,  too,  where  the  wife  died  during  the  absence  of 
her  husband  abroad,  so  that  it  was  necessary  for  another  to 
superintend  the  funeral.^  And  it  is  held  that  even  an  infant 
husband  may  contract  for  the  interment  of  his  deceased  wife, 
or  lawful  children,  so  as  to  be  bound  by  his  contract.  The 
contract  will  have  validity,  because  it  is  a  contract  for  the 
burial  of  those  who  are  personce  conjunctce  with  him  by 
reason  of  the  marriage,  and  as  such  it  is  to  be  regarded  as  a 
contract  for  his  own  personal  benefit.^ 

These  points  were  decided  in  England,  and  it  is  believed 
that  a  similar  rule  prevails  in  most,  if  not  all  of  the  States; 
several  recent  decisions  in  point  confirming  this  opinion.* 
As  to  the  further  question,  whether  under  the  late  married 
women's  acts,  and  our  modern  policy  of  conferring  upon  the 
wife  a  separate  estate,  the  husband's  obligation  binds  him  to 
such  an  expenditure  absolutely,  so  that  he  can  neither  make 
a  claim  on  her  separate  estate  tor  reimbursement,  nor  take 
that  separate  estate,  discharged  of  all  marital  trusts,  as  his 
own,  subject  to  the  settlement  of  just  debts  and  charges,  the 
burial  expenses  included,  we  cannot  lay  down  with  confi- 
dence at  this  stage.^ 

questions  in  the  courts  after  the  wife's  Eq  361 ;  Bradshaw  v.  Beard,  12  C.  B. 

death,  where  modern  practice  permits  n.  s.  344. 

of  an  administration  in  conflict  with  "  Jenkins  v.  Tucker,  1  H.  BI.  90. 

the  surviving  husband's  interests.     See  3  Cliapple  v.  Cooper,  13  M.  &  W. 

Sciioul.  Hus.  &  Wife,  §  411,  and  cases  252. 

cited;  Gill  v.  Woods,  81  111.  64;  Hus-  '  Smyley  r.  Reese,  53  Ala.89  ;  Sears 

ton  V.  Cone,  24  Ohio  St.  11;  Barrack  v.   Giddey,   41   Mich.   590;   McCue   v. 

V.  M'CuUocli,   3  Kay  &  J.   110 ;  Her-  Garvey,  21  N.  Y.  Supr.  5G2  ;  Cunning- 

rington  v.  Robertson,  71  N.  Y.  280.  ham  v.  Reardon,  98  Mass.  538. 

1  Ambrose  v.   Kenison,  4  E.   L.  &  ^  That  a   husband   is  proximately 

272 


CHAP.   XV.] 


HUSBAND   AS   SURVIVOR. 


§200 


§  200.  Death  of  Husband  Pending  Settlement  of  Wife's  Es- 
tate. —  Where  the  husband  himself  dies  before  the  wife's  out- 
standing personal  chattels  are  recovered,  his  next  of  kin  will 
be  entitled  to  them  in  equity.  This  is  the  rule  in  England  ; 
also  in  America,  wherever,  at  all  events,  the  husband's  right 
to  administer  for  his  own  benefit  is  recognized ;  for  it  is  the 
necessary  consequence  of  that  doctrine.  In  England  a  some- 
what circuitous  course  was  formerly  taken  in  such  cases  : 
but  this  is  done  no  longer.  If  the  husband  dies,  leaving 
assets  of  his  wife  unadministered,  the  more  rational  rule  has 
been  that  right  of  administration  follows  the  right  of  estate, 
and  devolves  upon  the  husband's  next  of  kin.^ 


liable  for  his  wife's  funeral  expenses, 
and  is  bound  to  bury  his  wife,  admits 
now  of  no  question.  Even  if  an  adult 
son  assisted  in  giving  orders  to  the  un- 
dertaker, tliis  does  not  relieve  the  hus- 
band. Sears  v.  Giddey,  41  Mich.  590. 
Smyley  v.  Reese,  53  Ala.  89,  inclines  to 
treat  this  obligation  as  one  somewhat 
like  that  of  supplying  necessaries,  so 
as  to  deny  to  the  husband  any  credit 
for  such  expenditure  in  tho  settlement 
of  his  wife's  estate.  But  see  comments 
in  Schoul.  Hus.  &  Wife,  §  412  ;  also 
McCue  V.  Garvey,  21  N.  Y.  Supr. 
662. 

In  further  recognition  of  the  hus- 
band's paramount  right  in  matters  rela- 
tive to  his  wife's  burial,  it  is  held  in 
Massachusetts  that  a  husband  who  has 
interred  his  wife  in  a  public  burial- 
ground  is  not  liable  as  a  trespasser  for 
removing  a  gravestone,  since  placed  at 
her  grave  by  her  mother,  witliout  injur- 
ing the  stone,  and  for  the  purpose  of 
substituting  another.  Durell  v.  Hay- 
ward,  9  Gray,  248  ;  and  that  the  right 
of  removing  the  remains  is  his.  See 
bill  in  equity  in  Weld  v.  Walker,  130 
Mass.  423. 

Certainly  where  separation  took  place 
under  circumstances  which  should  ren- 
der the  husband  liable  for  his  wife's 
subsequent  support,  he  is  liable  for  her 
necessary  funeral  and  burial  expenses 
also.  Cunningham  v.  Reardon,  98  Mass. 
538.  And  see  Sears  v.  Giddey,  41 
18 


Mich.  590;  Hodgson  v.  Williamson,  42 
L.  T.  076.  But  how  far  the  divorce  laws 
may  affect  the  husband's  obligation  and 
right  of  burial  is  not  yet  clearly  deter- 
mined. See  further,  Schoul.  Hus.  & 
Wife,  §§  413,  414. 

-  Roosevelt  v  Ellithorp,  10  Paige, 
415 ;  Bryan  v.  Rooks,  25  Ga.  622 ; 
Ward  V.  Thompson,  6  Gill  &  J.  349  ; 
Patterson  v.  High,  8  Ired.  Eq.  52; 
Schoul.  Hus.  &  Wife,  §  415  ;  Fielder  v. 
Hanyer,  3  Hag.  Ecc.  770.  But  cf.  Bell 
Hus.  &  Wife,  52. 

In  a  late  English  case  the  defendant 
received  money  for  a  married  woman, 
and  wrote  to  her  that  he  held  it  at  her 
disposal.  The  wife  died,  and  then  the 
husband,  who  had  not  interfered  in  the 
matter ;  and  the  wife's  administratrix 
sued  the  defendant  for  money  had  and 
received  to  the  use  of  the  wife.  It  was 
held  tiiat  the  wife's  administratrix, 
rather  than  the  husband's  representa- 
tive, could  maintain  the  action.  Fleet 
V.  Perrins,  L.  R.  4  Q.  B.  500 ;  s.  c.  L. 
R.  3  Q.  B  536.  But  cf.  Coleman  v. 
Hallowell,  1  Jones  Eq.  204.  In  another 
English  case  a  female  took  administra- 
tion of  the  estate  of  a  deceased  person 
as  creditor,  got  in  a  large  part  of  the 
estate,  and  paid  some  of  the  debts  ;  she 
afterwards  married  and  died.  The  hus- 
band had  taken  possession  of  lease- 
holds, part  of  the  estate,  but  no  fund 
had  been  set  apart  for  the  payment  of 
the  wife's  debt.     It  was  held  that  ad- 

273 


§  201  THE   DOMESTIC   HELATIONS.  [PART   II. 

§  201.  Rights  in  "Wife's  Heal  Estate ;  Tenancy  by  the  Cur- 
tesy.—  The  surviving  husband's  rights  in  the  real  estate  of 
his  deceased  wife  remain  to  be  noticed.  The  immediate 
effect  of  coverture,  as  we  have  seen,  is  to  invest  the  husband 
Avith  the  usufruct  of  all  real  estate  owned  by  the  wife  at  the 
time  of  her  marriage,  and  of  all  such  as  may  come  to  her 
during  coverture  ;  this  usufruct  being  in  the  nature  of  a  free- 
hold, with  beneficial  enjojaiient  of  rents  and  profits,  and  last- 
ing, at  all  events,  during  their  joint  lives.^ 

But  the  husband  at  the  common  law  may  acquire,  upon  a 
certain  condition,  an  enlarged  life  interest  in  his  wife's  lands, 
and  in  estates  of  inlieritance  of  which  she  was  seised  in  pos- 
session during  coverture,  so  as  to  extend  beyond  her  life  if  he 
survives  her  ;  in  other  words,  he  may  be  a  tenant  b}^  the  cur- 
tesy. Tenancy  by  the  courtesy,  or  tenancy  by  curtesy,  is  a 
freehold  estate  in  the  husband  for  the  term  of  his  natural 
life.  He  acquires  it  by  the  fact  that  a  child  capable  of  inher- 
itance is  born  of  the  marriage.  The  meaning  of  the  term  is 
somewhat  obscure.  Some  have  thought  the  word  "  curtesy  " 
signifies  the  favor  or  courtesy  with  which  the  law  regards  the 
husband.  Others  that  it  comes  from  the  Latin  word  cu?-tis, 
and  has  reference  to  the  feudal  custom  which  permitted  the 
husband,  as  soon  as  a  son  was  born,  to  attend  court  as  one  of 
the  pa7'es  curice,  and  do  homage  without  his  wife.  But  there 
is  reason  to  believe  that  tenancy  by  the  curtesy  existed  in 
the  civil  law  during  the  reign  of  Constantine.^  This  privi- 
lege of  the  husband  extends  to  all  lands  and  tenements  of 
which  the  wife  was  seised  at  any  time  during  coverture, 
whether  legal  or  trust  estate,  whether  in  fee-simple  or  by  way 
of  remainder  or  reversion. ^  The  common  law  affords  herein  a 
rare  but  positive  instance  of  public  policy  discriminating  in 
favor  of  marriage,  accompanied  by  the  propagation  of  children. 

ministration  of  the  unadministered  ef-         ^  Washb.  Real.  Prop.  128,  and  au- 

fects  of  the  deceased  could  not  be  taken  tliorities   cited  ;  2   Bl.   Com.  126,  and 

by  tlie  husband  in  his  own  right  as  a  notes  by  Chitty  and  others ;  2  Briglit 

creditor,  but  only  as  a  representative  Hus.  &  Wife,  116. 
of  his  wife.     Goods  of  Risdon,  L.  R.  1         ^  //;.  .  Co.  Litt.  30  a ,-  ib.  29  a,  n.  165 ; 

P.  &  D.  637.  Watts  v.  Ball,  1  P.  Wms.  109. 

1  Schoul.  Hus.  &  Wife,  §§  167,  181 ; 
suvra,  §  89. 

274 


CHAP.  XV.]  HUSBAND   AS   SUKVIVOR.  §  202 

§  202.  Tenancy  by  the  Curtesy;  Subject  continued.  —  Four 
things  are  essential,  at  common  law,  to  entitle  a  husband  to 
curtesy.  First.  A  lawful  marriage.  Second.  Seisin  of  the 
wife  at  some  time  during  coverture.  Tliird.  Birth  alive  of 
issue  capable  of  inheritance.  Fourth.  Death  of  the  wife. 
After  the  birth  of  the  child  the  husband's  title  to  curtesy 
becomes  possible  ;  and  the  curtesy  is  then  initiate.  After 
the  death  of  the  wife  the  title  to  curtesy  becomes  complete  ; 
and  the  curtesy  is  then  consummate.^  For  a  full  description 
of  curtesy,  with  its  incidents,  the  reader  is  referred  to  ele- 
mentary works  on  the  law  of  Real  Estate.^ 

Questions  concerning  this  estate  are  most  commonly  raised, 
however,  with  reference  to  the  second  essential  above  stated. 

Of  late  years  tenancy  by  the  curtesy  has  become  practi- 
cally infrequent  in  England  by  reason  of  the  prevalence  of 
marriage  settlements  excluding  such  right.^  In  this  country 
it  has  existed  in  all  of  the  older  States,  but  is  modified  in 
some  of  them,  expressly  or  by  implication,  by  late  statutes. 
In  Iowa  and  Indiana,  curtesy  is  expressly  abolished,  and  a 
certain  defined  interest  in  the  wife's  real  estate,  of  the  dower 
sort,  goes  to  her  husband  instead  by  way  of  inheritance.  In 
Texas,  California,  Louisiana,  and  other  States  where  the  ten- 
ure of  real  estate  comes  from  the  community  or  civil  law, 
rather  than  the  common  law,  curtesy  is  not  recognized.  In 
some  of  the  States  the  right  of  curtesy  appears  to  be  denied 
to  husbands  who  wilfully  neglect  and  desert  their  wives.  In 
most  New  England  States,  and  in  various  other  parts  of  the 
country,  tenancy  by  the  curtesy  is  expressly  reserved  by 
statute.*  It  is  decided  that  curtesy  still  exists  in  New  York, 
though  doubts  were  at  one  time  entertained ;  and  under 
statute  qualifications,  or  independently  of  them,  curtesy  ob- 


1  1  Washb.  Tical  Prop.  130.  cited  in  1  Waslib.  Real  Prop.  258,  and 

.   .2  1  Washb.  Real  Prop.  127  ft  seq. ;  note  ;  and  notes  to   4   Kent  Com.  34. 

Williams   Real   Prop.   8th  ed.  218 ;  4  Statute  provisions   as  to   curtesy  and 

Kent   Com.   27-35.     And  see   Schoul.  dower  are  frequently  alike-     And  see 

Hus.  &  Wife,  §§  420-423.  Schoul.  Hus.  and  Wife,  §  424,  and  Ap- 

*  Wms.  Real  Prop.  187  ,  1  Washb.  pendix  for  changes,  some  of  which  (as 
Real  Prop.  120.  in  Massachusetts  for  instance)  are  very 

*  See    statutes   of  different   States  recent. 

275 


§203 


THE   DOMESTIC   RELATIONS. 


[part  II. 


tains  in  perhaps  the  majority  of  States.  Indeed,  curtesy 
consummate,  under  the  married  women's  acts,  is  found  pro- 
tected, notwithstanding  the  husband's  usufruct  during  his 
wife's  life  is  taken  away  or  modified.^  In  some  States  the 
interest  of  the  husband  in  his  deceased  wife's  real  estate  is 
an  absolute  one  in  fee ;  '^  or  curtesy  is  conferred  regardless 
of  the  birth  of  a  child.^ 

§  203.  Husband's  Claims  against  "Wife's  Real  Estate  ;  Improve- 
ments, &c.  — Inasmuch  as  the  husband's  interest  in  his  wife's 
lands  is  limited  to  the  usufruct  as  a  life-tenant,  and  Anglo- 
Saxon  policy  has  been  that  landed  property  should  descend 
to  one's  blood  relations,  it  follows  that  all  claims  presented 
by  him  against  her  real  estate,  after  her  death,  in  relation  to 
such  property,  will  be  closely  scrutinized.  Thus  it  has  been 
held  that  he  cannot  claim  reimbursement  for  moneys  paid  in 
settling  controversies  in  regard  to  the  title  of  his  wife's  real 
estate.*  So  the  general  rule  is  strict  as  regards  improvements 
made  by  the  husband  upon  his  wife's  real  estate.^ 


1  Porch  V.  Fries,  3  C.  E.  Green, 
204;  Lynde  v.  McGregor,  13  Allen, 
182. 

2  Hooper  v.  Howell,  52  Ga.  315; 
1  Washb.  129. 

3  1  Washb.  129 ;  Elliott  v.  Teal,  5 
Sawyer,  249. 

4  Campbell  v.  Wallace,  12  N.  H. 
362;  Burleigh  v.  Coffin,  2  Fost.  118. 
And  see  Warren  v.  Jennison,  6  Gray, 
559.  But  see  2  Story  Eq.  Jur.  §  1023 ; 
Pitt  V.  Pitt,  1  Turn.  &  Russ.  180; 
Shrewsbury  i".  Shrewsbury,  1  Ves.  Jr. 
23.3 ;  Jenness  v.  Robinson,  10  N.  H. 
218. 

5  The  English  doctrine  is,  thatif  tlie 
husband  erects  buildings  upon  his  wife's 
lands,  or  otherwise  makes  permanent 
improvements  thereon,  expending  Ins 
own  money  for  such  purpose,  the  pre- 
sumption is  that  he  intended  the  ex- 
pense for  his  wife's  benefit,  and  he  can- 
not recover  for  it.  1  Roper  Hus.  & 
Wife,  54  ;  Campion  v.  Cotton,  17  Ves. 
264;  1  Washb.  Real  Prop.  281  Seve- 
ral cases  ol  this  sort  have  come  before 
our    own    courts    quite    recently,   the 

276 


claims  being  usually  presented  after 
the  wife's  death  ;  and  this  prmciple  has 
been  rigidly  applied,  though  doubtless 
occasioning  in  some  instances  positive 
hardsliip  and  wrong.  Burleigh  v.  Cof- 
fin, 2  Fost.  118,  White  y.  Hildreth  32 
Vt.  265.  Brevard  /;  Jones,  50  Ala  221; 
Washburn  ?-.  Sproai,  1 6  Mas'*  449  See 
also,  Sclioul.  Hus.  &  Wife,  §  42-'"). 

Concerning  tlie  wills  of  married 
women,  the  law  of  which  is  greatlyafleci- 
ed  by  recent  statutes  which  tend  to  place 
husband  and  wife  on  a  mutual  footing, 
and  enlarge  the  wife's  capacity  in  equity 
to  make  testamentary  disposition  of 
her  separate  estate,  see,  at  lengtli, 
Schoul.  Hus.  &  Wife,  §§  457-470,  and 
appendix.  So,  too,  as  to  a  wife's  testa- 
mentary appointment  in  execution  of  a 
power.  Ih  §  470.  Tiie  husband's  as- 
bent  has  been  an  important  element  in 
such  cases  until  quite  recently.  Ih. 
§  458. 

The  marriage  of  a  woman  was  for- 
merly deemed  a  revocation  of  her  will 
executed  while  single,  while  marriage 
and  the  birth  of  a  child  was  the  rule 


CHAP.  XVI.]  SURVIVING   WITE's   RIGHTS.  §  205 


CHAPTER  XVI. 

DEATH    OF    THE    HUSBAND  ;    RIGHTS    AND     LIABILITIES     OF 
THE   SURVIVING   WIFE. 

§  204.  Widow's  Right  to  Administer.  —  On  the  dissolution 
of  a  marriage  by  tlie  death  of  the  husband,  the  widow  is  usu- 
ally selected  to  administer  upon  his  estate,  provided  she  be 
willing  and  competent  to  take  the  trust.  But  her  right  of 
administration  on  her  husband's  estate  is  not  coextensive 
with  that  of  the  husband  on  her  estate.  For  in  the  one  in- 
stance the  husband  is  to  be  preferred  to  all  others  ;  whereas, 
in  the  other,  administration  may  be  granted  by  the  court,  at 
discretion,  either  to  the  widow  alone,  or  to  the  next  of  kin, 
or  to  both  together.^  This  is  the  law  in  England,  and  the 
same  prevails  generally  in  this  country,  under  the  statutes  of 
the  different  States." 

§  205.  Widow's  Distributive  Sliare  in  Personalty.  —  Under 
the  English  statute  of  distributions,  22  &  23  Car.  II.  c.  10, 
the  widow  surviving  her  husband,  who  deceased  intestate,  is 
entitled  to  one  third  of  the  personal  property  which  remains 
after  payment  of  the  husband's  debts,  while  the  remaining 

applied  to  a  man.  Recent  statutes  p.  74,  Rev.  Stats.),  the  widow  and  next 
tend  to  place  tlie  spouses  on  an  equal  of  kin  are  designated.  Grant  of  ad- 
footing  in  tliis  respect.  Schoul.  Hus.  ministration  revoked,  wiiere  it  appeared 
&  Wife,  §§  442,  457.  And  see  1  Redf.  tiiat  tlie  marriage  under  which  E. 
Wills,  24,  297  ;  3  Jarm,  Wills,  5th  Am.  claimed  to  be  widow  was  void.  O'Gara 
ed.  783.  V.   Eisenlohr,  38  N.  Y.   296,     And  see 

1  1  Salk.  30  ;  11  Vin.  Abr.  92    Anon.  Mack  v.  State,  63  Ala.  138. 

Stra.   552 ;  Macq.   Hus.   &  Wife,  145 ;  As  to  administration  de  bonis  non,  of 

Case   of  Williams,    3   Hag.   Ecc.   217.  the  husband's  estate,  where  the  widow 

See  Goods  of  Ihler,  L.  R.  3  P.  &  D.  50,  took  out  administration,  carried  on  her 

as  to  right  of  a  widow,  having  lived  late  husband's  business,  and  then  died 

separate  from  her  husband,  to  admin-  intestate  and  insolvent,  see  Fairland  v. 

ister.  Percy,  3  P,  &  D.  217.     And  see,  gen- 

2  2  Kent  Com.  410,  411,  and  notes,  erally,  Widgery  v.  Tepper,  5  Ch.  D. 
But  by  the  New  York  statutes  (vol.  2,  516. 

277 


§  205  THE   DOMESTIC   EELA.TIONS.  [PART   II. 

two  thirds  go  to  the  children  or  their  representatives.^  The 
widow's  share  is  not  unfrequently  termed  her  "  thirds,"  or 
incorrectly  her  "  thirds  of  personal  estate  at  common  law."  ^ 
The  statute  further  provides  that  when  the  husband  dies  in- 
testate, leaving  a  widow  only  and  no  lineal  descendant,  the 
widow  is  entitled  to  a  moiety,  or  half  of  his  personal  estate, 
and  the  other  half  goes  to  the  husband's  next  of  kin.  When 
there  are  no  next  of  kin,  the  widow  is  not  entitled  to  the 
whole  of  her  husband's  personal  estate ;  but  one  half  belongs 
to  her,  and  the  other  half  goes  to  the  crown.^  Here,  too,  the 
wife's  right  is  not  coequal  with  that  of  her  husband  ;  for  he 
surviving  her  takes  the  whole  of  her  personal  estate ;  while  she 
surviving  him  cannot  in  any  event  be  entitled  to  more  than 
one  half  of  his  personal  estate,  even  though  the  estate  con- 
sisted wholly  of  property  which  belonged  to  her  before  mar- 
riage. It  is  held  that  the  widow  of  a  deceased  child  cannot 
take  as  a  representative  of  such  child  under  the  statutes  of 
distribution.^  The  husband  and  wife,  by  a  marriage  settle- 
ment, may  exclude  one  another  from  all  benefits  by  way  of 
distribution  in  their  respective  estates,  other  provisions  hav- 
ing been  substituted  by  way  of  recompense.^  In  this  country 
the  statute  of  Charles  II.  is  at  the  basis  of  our  legislation 
regarding  the  estates  of  intestates,  though  modifications  are 
frequently  to  be  met  with.^ 

It  is  held  that  a  bequest  to  the  wife  by  the  husband,  in  full 
of  her  legal  claims,  is  no  bar  to  her  right  to  a  distributive 
share  in  a  lapsed  bequest.'^  So  acts  of  the  husband  during 
his  lifetime,  committed  for  the  purpose  of  defrauding  the  wife 
of  her  distributive  share  in  his  personal  estate  after  his  de- 
cease, have  been  set  aside  in  equity.^ 

1  2  Bl.  Com.  515,  516.  5  Earl  of  Buckinghamshire  2;.Drury, 

2  See  Lord  Cottenham,  in  Gurley  v.    2  Eden,  60. 

Gurley,  6  CI.  &  Fin.  741 ;  Macq.  Hus.         ^  gee  2  Kent  Com.  11th  ed.  427,428, 

&  Wife,  146.  and  notes  ;  Schoul.  Hus.  &  Wife,  §  427, 

3  2  Bl.  Com.  515,  516 ;  2  Kent  Com.  and  appendix,  as  to  these  changes  in 
427 ;  Cave  v.  Roberts,  8  Sim.  214.    In  different  States. 

certain  localities  of  England  a  different  ^  Garthshorer.  Clialie,  10  Ves.  Jr.  1. 

rule  prevails ;   the  local  customs  con-  But  see  Wright  v.  Fearis,  3  Swanst 

tinuing  in  force.    2  Bl.  Com.  518.  181. 

*  Price  V.  Strange,  6  Madd.  161.  «  Hays  v  H.  nry,  1  Md.  Ch.  337.  Ct 

278 


CHAP.  XVI.]  SURVIVING    WIFE's   RIGHTS.  §  208 

§  206.  Widow's  Waiver  of  Provision  of  Will.  —  The  wife's 
privilege  is  carried  even  farther  iii  Massachusetts  and  various 
other  States,  by  a  statute  which  permits  the  widow  to  waive 
a  provision  made  for  her  by  her  husband's  will,  and  there- 
upon to  take  such  portion  as  the  law  would  have  given  her 
had  he  died  intestate.^  But  this  privilege  is  accorded  with 
some  restrictions  as  to  the  full  amoimt  to  be  allowed  her.^ 
The  right  on  her  part  becomes  complete  upon  her  formal  re- 
nunciation of  the  provisions  under  the  will,  without  any  sur- 
render of  property  under  the  will.^  But  her  election  must 
be  strictly  made  within  the  time  designated  by  statute.^  And 
it  is  to  be  inferred  that  the  right  of  election  is  personal  to 
herself,  and  cannot  be  exercised  by  her  representatives  or 
kindred  after  her  death. ^ 

§  207.  Widow's  Allowance.  —  Another  liberal  provision 
made  by  the  legislatures  of  some  American  States  is  that 
known  as  the  widow's  allowance.  This  is  a  reasonable  sum, 
such  as  the  Coui-t  of  Probate  may  order,  as  necessaries  to  the 
widow  for  herself  and  the  family,  or,  if  there  be  no  widow,  to 
the  minor  children.  The  allowance  is  set  apart  as  something 
superior  to  the  claims  of  general  creditors,  and  is  even  pre- 
ferred to  the  expenses  of  administration,  funeral  and  last  ill- 
ness of  the  husband.  The  amount  is  at  the  discretion  of  the 
court;  and  where  the  husband  has  died  insolvent,  leaving 
few  assets,  it  is  not  uncommon  for  the  whole  of  the  personal 
property  to  be  thus  awarded  to  the  widow,  wherebj^  is  afforded 
an  expeditious  means  of  settling  perplexing  little  estates.^ 

§  208.  Widow's  Paraphernalia.  —  The  widow's  paraphernalia 

Padfield  v.  Padfield,  78  111.  16.    And  see         2  Crozier's    Appeal,    90    Penn.    St. 

Schoul.  Hus.  &  Wife,  §  428.  384  ;  Register  v.  Hensley,  70  Mo.  189; 

1  Mass.  Stats.  1861,  c.  164;  Firth  v.  In  re  Wilber,  52  Wis.  295. 
Denny,  2  Allen,  468  ;  Towle  v.  Swasey,  3  Register  v.  Hensley,  70  Mo.  189. 
106  Mass.  100.     Similar  statutes  are  in  *  Waterburyi'.  Netlierland,  6  Heisk. 
force  in  other  States.    White  v.  Dance,  512.     Here  she  had  relied  on  the  legal 
53  111.  413  ;    Stockton   v.   Wooley,  20  advice  of  the  executor. 
Ohio  St.  184;  Arrington  v.  Dortch,  77          5  go  held   in  Crozier's   Appeal,  90 
N.  C.  867;    Cummings   v.  Cummings,  Penn.  St.  384.     Otherwise  in  Indiana. 
51  Mo.   261.     In  some  States  the  hus-  Bratney  v.  Curry,  33  Ind.  339.     In  Mas- 
band  now  has  a  corresponding  right  of  sachusetts  the  right  is  treated  as  per- 
waiver  under  his  wife's  will.     Schoul.  sonal  to  the  widow. 
Hus.  &  Wife,  §  206.  6  Schoul.  Hus.  &  Wife,  §  430. 

279 


§  208  THE   DOMESTIC   RELATIONS.  [PAET  11. 

is  a  species  of  property  recognized  at  the  common  law,  though 
borrowed  from  the  civihans.  It  consists  of  such  articles  of 
wearing  apparel,  personal  ornament,  and  personal  conveni- 
ence as  are  suitable  to  a  wife's  rank  and  degree,  and  such  as 
she  conthiued  to  use  during  the  marriage.^  The  term  imra- 
phernalia  is  derived  from  the  Greeks,  and  transmitted  to  Eng- 
land through  the  civil  law.  But  while  the  wiie^s  paraphernalia 
at  the  civil  law  resembled  what  we  call  the  wife's  separate 
propert}^  the  word  itself  has  a  more  limited  signification  in 
England  and  America,  being  confined  to  personal  necessaries 
or  ornaments,  and  having  no  possible  application  to  real 
estate.^  The  common-law  doctrine  of  paraphernalia  is  this  : 
that  the  suitable  ornaments  and  wearing  apparel  of  a  married 
woman,  which  she  had  at  the  time  of  her  marriage,  or  which 
come  to  her  through  her  husband  before  or  during  coverture, 
remain  his  personal  property  during  his  life,  and  he  may  sell 
and  dispose  of  them  during  his  life  ;  but  such  as  remain  at  the 
time  of  his  cleatli  belong  thenceforth  to  her  absolutely  as  her 
paraphernalia.^  It  seems  that  he  may  even  give  them  away 
while  coverture  lasts,  in  the  exercise  of  his  marital  rights. 
For  the  loss  thereof  the  wife  cannot  sue  alone,  but  the  hus- 
band sues  as  for  his  own  property.*  But  he  certainly  cannot 
bequeath  them  to  his  wife  ;  nor  on  principle  dispose  of  them 
as  donatio  causa  mortis.^ 

Paraphernalia  are  therefore  to  be  distinguished  from  the 
wife's  separate  property,  which  we  have  considered,  inasmuch 
as  her  rights  are  perfected  only  when  she  becomes  a  widow  ; 

1  2  Bl.   Com.   436;    Macq.   Hus.  &  nalia  "  appears  to  be  used  as  synon- 

Wife,  147.  ymous   with   "  separate  estate,"  orna- 

^  Blackstone   says  the  word   signi-  ments,  &c. 

lied    "  something   over  and  above  lier  ■*  Tipping   v.   Tipping,  1    V.   Wins, 

dower;"    whereas,  as   a   late    English  730;    1   Rolle,  911,  L.  35;   Com.  Dig. 

writer  observes,  it  really  meant  some-  Baron  &  Feme,  Paraphernalia  ;  Macq. 

thing  of  her  own,  not  surrendered  by  IIu.s.  &  Wife,  147,  148 ;    State  v.  Hays, 

lier  at    ber  marriage;    something  re-  21  Ind.  288.     See  Rawson  t'.  Pennsyl- 

served   and    kept  back   from  the  dos,  vania  R.  R.  Co.,  48  N.  Y.  212. 

or    fortune,    which    she    brought    her  *  Hawkins   v.    Providence   R.,    119 

husband.     Macq.    Hus.    &   Wife,    152.  Mass.  596;  McCormick  v.  Penn.  Cen- 

"  Dowry  "  may  have  been  the  word  in-  tral  R.,  49  N.  Y.  803. 

tended  by  Blackstone.  See  Sclioul.  Hus-  ^  2  Bl.  Com.  436 ;  Noye's  Max.  Ch. 

&  Wife.  §§342,  343, 431.    In /?eHarrall,  49. 
31  2s.  J.  Eq.  101,  the  word  "parapher- 

280 


CHAP.  XVI.]  SURVIVING   WIFE's    RIGHTS. 


§  208 


while  the  property  is  alienable,  not  by  herself,  but  by  her 
husband,  daring  his  life.^  Such  gifts  from  the  husband  are 
further  to  be  distinguished  from  gifts  bestowed  solely  upon 
the  wife  by  her  father,  or  by  a  relative,  or  even  by  a  stranger. 
For  ill  the  latter  instance  they  would  be  deemed  gifts  to  her 
separate  use  ;  and  then,  if  received  with  the  husband's  con- 
sent, neither  he  nor  his  creditors  could  afterwards  dispose  of 
them. 2 

Paraphernalia  would  seem  to  be  so  far  personal  to  the  widow, 
that,  if  not  claimed  by  her  during  her  lifetime,  they  cannot 
after  her  death  be  demanded  by  her  executor  or  administrator. 
Accordingly,  it  is  held  that  if  the  husband  should  bequeath 
them  to  her  for  life,  and  then  over,  and  she  should  make  no 
election  to  have  them  as  her  paraphernal  goods,  her  represen- 


1  Cro.  Car.  844  ;  Cora.  Dig.  Baron  & 
Feme,  Paraphernalia.  Tlie  jiarapher- 
nalia  differ  also  from  the  wife's  pin- 
money.  Supra,  §  160.  Married  wo- 
men's acts  may,  of  course,  render  the 
wife's  clothing,  jewelry,  &c.,  absolutely 
her  own.     See  supra,  c.  10. 

2  2  Story  Eq.  Juris.  555.  Mere 
ornaments  for  a  parlor  are  not  to  be 
treated  as  paraphernal  property.  Gra- 
ham V.  Londonderry,  3  Atk.  393.  Nor 
can  articles  he  claimed  as  such  which 
are,  in  fact,  heirlooms.  Calmady  /'. 
Calmady,  11  Vin.  Abr.  181,  182.  But 
a  gold  wiitch  worn  by  the  wife  of  one 
who  maintains  a  fair  social  position 
may  be  treateil  as  paraphernal.  Tllex- 
an  V.  Wilson,  43  Me.  186.  A  "neces- 
sary bed  "  is  paraphernal.  See  Com. 
Dig  Baron  &  Feme,  Paraphernalia. 
Jewels  purchased  by  the  husband,  and 
worn  by  the  wife  with  her  other  orna- 
ments, it  is  said,  become  her  paruplier- 
nalia,  in  absence  of  evidence  to  the  con- 
trary ;  while  family  jewels,  by  merely 
being  worn  by  the  wife,  do  not.  Jer- 
voise  V.  Jervoise,  17  Beav.  506  Where 
a  piece  of  jewelry,  in  possession  of  the 
husband  at  the  time  of  marriage  as  an 
heirloom,  is  greatly  enhanced  m  value 

•by  adding  new  diamonds,  and  is  then 
given  to  the  wife  to  wear,  though  be- 
queatlied  to  his  heirs,  the  rule,  as  laid 


down  by  Lord  Chancellor  Macclesfield, 
is  to  separate  the  new  diamonds  after 
the  husband's  death,  and  bestow  them 
upon  the  widow  as  her  parapliernalia, 
leaving  the  heirs  to  enjoy  the  residue. 
Calmady  v.  Calmady,  11  Vin.  Abr.  181, 
182.  And  the  old  books  say  that  if 
the  husband  delivers  cloth  to  his  wife 
for  her  apparel,  and  dies  before  it  is 
made  up,  she  shall  have  the  cloth.  1 
Rolle,  911,  L.  35;  Com.  Dig.  Baron  & 
Feme,  Paraphernalia.  The  question  of 
value  is  not  material  in  setting  off  the 
widow's  jiarajiliernalin,  so  long  as  the 
articles  are  suitable  to  her  degree.  76.: 
Macq.  II us.  &  Wife,  148.  And  while 
the  modern  cases  which  turn  on  such 
questions  are  rare,  especially  in  this 
country,  it  cannot  be  doubted  that  a 
liberal  rule  would  at  this  day  be  ap- 
lied  in  the  widow's  favor. 

As  to  personal  ornaments,  it  seems 
to  be  an  important  element  in  the  title, 
tiiat  tlie  wife  should  be  seen  to  wear 
them  at  intervals.  Particularly  is  this 
true  where  the  husband  kept  them  in 
his  own  possession,  for  otherwise  it 
might  be  said  that  he  never  gave  them 
to  her.  But  it  is  enough  to  establish 
her  claim  that  he  had  allowed  her  to 
wear  them  on  birthdays  or  other  suit- 
able occasions.  Graham  v.  London- 
derry, 3  Atk.  393. 

281 


§  208  THE   DOMESTIC    RELATIONS.  [PART   II. 

tative  after  her  decease  would  be  excluded.^  But  in  a  recent 
English  case,  not  only  was  the  committee  of  the  widow,  being 
a  lunatic,  permitted  to  elect  in  her  stead  while  she  remained 
alive  ;  but  upon  her  subsequent  death,  her  next  of  kin  were 
allowed  to  come  in  and  choose  whether  to  take  the  imrapher- 
nalia  or  the  benefits  given  her  under  her  husband's  will ;  and, 
upon  their  choice  of  the  former,  an  order  in  chancery  was 
made  accordingly .^ 

The  wife's  paraphernal  property  is  subject  to  her  husband's 
debts  during  his  life ;  for  in  truth  it  is  not  then  her  property 
at  all.^  Nor  can  she  maintain  an  indictment  against  any  one 
who  steals  it,  while  her  husband  is  alive.'^  So,  too,  it  is  liable 
for  his  debts  after  his  death,  when  there  is  a  deficiency  of 
assets  in  the  administrator's  hands.^  But  even  then  her 
necessary  clothing  is  protected  ;  for  in  the  words  of  an  an- 
cient judicial  resolution,  "  She  ought  not  to  be  naked  or  ex- 
posed to  shame  and  cold."  ^  And  in  many  of  the  United 
States-  there  are  at  the  present  day  statutes  which  justly 
reserve  to  the  widow,  in  any  event,  necessaries  in  the  house 
at  the  time  of  her  husband's  death,  and  the  ornaments  and 
clothing  of  herself  and  children^  If  a  husband  pawn  his 
wife's  parapherna/ia  as  collateral  security  for  money  borrowed, 
and  give  power  to  tlie  lender  to  sell  for  a  sum  certain  during 
his  absence,  this  will  not  be  deemed  an  absolute  alienation 
but  shall  stand  as  a  pledge  redeemable  by  the  widow  ;  and  if 
the  husband  have  left  sufficient  to  redeem  (after  payment  of 
all  his  debts),  she  is  entitled,  under  the  rules  of  equity,  to 
have  the  redemption  money  raised  out  ot"  his  personal  estate.^ 

1  Macq.  ilus.  &  Wife,  150  ,  Clarges  ^  See  Mass.  Gen.  Stats,  c.  96.  §§  4, 5  ; 

?;.  Albemarle,  2  Vern.  246;  Com.  Dig.  Ginocliio  y  Porcella,  .3  BraJt   Sur.  277. 

Baron  &  Feme,  Paraphernalia.  **  Graham  ?;.  Londonderry,  3  Atk. 

'^  hi  re  Hewson,  23  E.  L.  &  Eq.  283  393      In  A'e  liarrall,  31  N   J.  Eq    101, 

*  Tllexan  v.  Wilson,  43  Me.  186 ,  1  this  same  rule  is  applied  in  equity  to 

Bright  Hus.  &  Wife,  288.  the  guardian  ot  a  lunatic  husband,  who 

•»  State  c.  Hays,  21  Ind.  288  pawned  the  wife's  jewels,  while  sane,  to 

5  2  Bl    Com.  436  ;    Macq.   Hus.   &  pay  his  personal  expenses,  the  lunatic's 

Wife,  147,  149,    Snelson    v.  Corbet,  3  estate  being  ample      Here  the  lunatic 

Atk.  869  ;  Howard  o.  iVIenifee,  5  Pike,  was  still  alive,  which  makes  the  case 

668  ;    Ridout  v.  Earl  ot    Plymouth,  2  somewhat  anomalous  ;  tliough,  Semite, 

Atk.  104.  a  wile's  ornaments  were  here  treated- 

^  1  Rolle,  911,  L.  35,  cited  in  Macq.  as  her  separate  property. 
Hus.  &  Wife,  147. 

282 


CHAP.  XVI.]  SUHVIVING   WIFE's   EIGHTS.  §  210 

But  creditors  must  first  be  satisfied  in  all  cases ;  though  the 
widow's  right  in  respect  to  such  property  is  superior  to  that 
of  any  legatee  of  the  husband.^ 

§  209.  Equity  of  Redemption  and  Exoneration  in  Mortgages. 
—  We  have  already  observed  that  a  wife  may  join  with  her 
husband  in  executing  a  mortgage  of  her  general  real  estate  as 
security  for  his  debts,  and  that,  if  this  mortgage  be  properly 
foreclosed,  and  equities  of  redemption  barred,  her  right  to  the 
real  estate  is  gone.^  We  have  also  seen  that  the  wife's  sep- 
arate real  estate  may  be  thus  encumbered.^  Yet  the  courts 
have  gone  as  far  as  they  consistently  could  in  upholding  the 
wife's  title  under  such  circumstances,  and  in  allowing  her  all 
the  privileges  of  a  surety.^  In  the  first  place,  they  favor  her 
right  to  the  equity  of  redemption  as  against  her  husband  ;  in 
the  second  place,  they  allow  exoneration  or  reimbursement 
from  her  husband's  estate,  after  his  death,  where  the  assets 
prove  sufficient  for  that  purpose.^ 

To  the  wife  also  belongs  the  right  in  equity  to  have  her 
estate  exonerated  out  of  her  husband's  personal  and  real 
assets.     This  is  known  as  the  wife's  equity  of  exoneration.^ 

§  210.  Controversies  between  Administrator  and  Widow.  — 
Controversies  between  a  widow  and  her  husband's  adminis- 
trator are  not  un frequent;  and  it  is  manifest  that  at  the 
common  law  the  widow's  situation  with  reference  to  personal 
property,  which  she  had  brought  with  her  into  the  marriage 

1  76.  ,•  Tipping  v.  Tipping,  IP.  Wms.  ^  Supra,  §§  1.37,  152,  and  cases 
729 ;  Ridout  v.  Earl  of  Plymoutli,  2  Atk.     cited. 

104  ;  Burton  v.  Pierpont,  2  P.  Wms.  80.  *  As  to  these  privileges,  see  supra, 

And    even   tiiough  contingent    assets  §§  137,  152. 

come  to   hand   afterwards,  the  wife's         5  See  Ruscombe  v.  Hare,  6  Dow,  1 ; 

claim  is  gone.     lb.  Jackson  v.  Innes,  1  Bli.  115.     And  see 

Letters  written  to  a  wife  by  a  former  Schoul.  Hus.  &  Wife,  §  4.34. 
husband  belong  to  her  and  not  to  his  6  2  Saund.  177;  1  Mod.  290;  Robin- 
estate  ;  and  her  own  gift  of  them  is  son  v.  Gee,  1  Ves.  Sen.  252,  per  Lord 
valid  as  against  the  executor  of  such  Hardwicke.  See  Schoul.  Hus.  &  Wife, 
estate  or  her  second  husband.  Grigsby  §§274,435.  The  principle  is  that  the 
V.  Breckenridge,  2  Bush,  480.  See,  wife,  when  mortgaging  her  property 
further,  Schoul.  Hus.  &  Wife,  §  4.32,  for  her  husband's  debt,  stands  in  the 
as  to  appropriating  real  estate  to  pay  position  of  a  surety,  and  therefore 
debts,  before  the  paraphernalia  can  be  may  claim  indemnity  from  the  princi- 
taken.  p;il  for  whose  benefit  her  security  was 

2  See  supra,  §  94,  and  cases  cited.  interposed. 

283 


§  211  THE   DOMESTIC   RELATIONS.  [PART  U. 

state,  was  often  extremely  hard.  But  equity  protects  restric- 
tion imposed  on  trust  funds  for  her  1)enefit,  even  as  against 
her  own  indiscreet  conduct.^  Nor  are  instances  wanting 
where  a  widow's  hasty,  inconsiderate,  and  foolish  acts  with 
reference  to  property  rights  acquired  by  her  in  her  deceased 
husband's  estate  have  been  deemed  inoperative  ;  her  distrib- 
utive share  and  allowances  being  preserved  for  her  by  the 
courts  as  against  herself,  so  to  speak.^ 

A  widow  must  not  intermeddle  with  her  late  husband's 
estate,  nor  assume  duties  which  properly  devolve  upon  the  ex- 
ecutor or  administrator.^  And,  when  administratrix  herself  of 
her  husband's  estate,  she  is  expected  to  enjoy  the  usual  rights 
and  assume  the  usual  responsibilities  pertaining  to  the  office.* 

§  211.  Widow's  Obligation  to  bury  Husband.  —  The  com- 
mon-law  obligation  of  the  widow  to  bury  her  deceased  hus- 
band rests  upon  weaker  foundations  than  the  corresponding 
obligation  of  the  husband.  In  truth  it  seems  somewhat  in- 
consistent with  the  doctrine  of  coverture  ;  for  why,  it  may  be 
asked,  should  a  woman  answer  for  the  indigence  of  one  whose 
lawful  privilege  it  was  to  strip  her  of  her  own  means  of  sup- 
port ?  Where  the  husband  leaves  an  estate,  the  funeral  expen- 
ses are  to  be  paid  by  his  executor  or  administrator,  and  not 
by  his  widow.  This  is  the  rule  both  in  England  and  America ; 
and  it  is  doubtless  reasonable  so  far  as  it  goes.*  If  the  husband's 
estate  is  sufficient,  it  ought  to  bear  the  expense  of  his  burial. 

1  See  e.  g.  Dunn  v.  Lancaster,  4  stand  upon  a  like  footing  as  regarded 
Bush,  581 ;  Re  Peacock's  Trusts,  L.  R.  tlie  obligation  of  burying  one  another. 
10  Ch.  D.  490;  Schoul.  Hus.  &  Wife,  Here  a  widow,  who  was  also  an  infant, 
§§  308,  437.  was  held  bound  by  her  contract  for  the 

2  See  Maull  v.  Vaughn,  45  Ala.  134 ;  expense  of  her  husband's  interment. 
Cammack  v.  Lewis,  15  Wall.  643.  The  decision  proceeded  upon  the   in- 

3  Keating  ".  Condon,  68  Penn.  St.  75;  genious  doctrine,  that,  since  a  husband 
Leacli  V.  Prebster,  35  Ind.  415.  ought   to    bury   his    wife  and   lawful 

*  See  Ready  v.  Hanim,  46  Miss.  422 ;  children,  who  are  the  personcE  conjuntUe 
Fox  V.  Doherty,  30  Iowa,  334;  Mose-  with  him,  as  a  matter  of  personal  ben- 
ley  V.  Rendell,  L.  R.  6  Q.  B.  3.3&.  efit  to  himself,  the  wife  should  do  the 

^  2  Redf  Wills,  224  ;  2  Wms.  Ex'rs,  same  by  her  husband,  as  a  benefit  and 

871 ;  Macq.  Hus.  &  Wife,  183.     But  in  comfort  to  herself  ;    and  therefore  that 

an  English  case,  decided  not  many  years  the  case  conies  within  the  rule  of  law 

ago,  the  court  seemed   to  regard  this  which  makes  a  contract  good  where  the 

subject  somewhat  differently,  and  in-  infant   is  a  gainer  by  it.     Chappie  v. 

timated  that  husband  and  wife  should  Cooper,  13  M.  &  W.  252. 

284 


CHAP.  XVI.]  SURVIVING   WIFE's   EIGHTS. 


§212 


§  212.  Effect  of  Husband's  Death  upon  Wife's  Contracts.  — 
Where  a  married  woman  contracts  with  authority  from  her 
husband,  and  the  husband  dies  suddenly,  and  in  point  of  fact 
before  certain  purchases  were  made  on  his  credit,  is  his  estate 
liable,  or  is  his  widow ;  or  must  the  creditor  bear  the  loss  ? 
The  general  rule  undoubtedly  is  that  the  authority  of  an 
attorney  or  agent  expires  with  the  principal.  A  dead  man 
can  have  no  one  acting  by  his  name  and  authority.  And  since 
the  wife  contracts  only  as  her  husband's  agent  at  the  common 
law,  her  case  would  seem  to  fall  within  the  general  doctrine.^ 

The  modern  inclination  is  clearly  to  relax  somewhat  the 
rigid  rule  of  the  common  law  of  agency,  and  to  favor  the 
Roman  doctrine,  which  binds  the  principal  or  his  estate  in 
respect  to  acts  clone  in  good  faith  by  his  agent  before  notice 
of  revocation.^ 


1  Such  in  fact  was  the  ruling  of  the 
court  in  Blades  v.  Free,  where  a  man 
who  had  some  years  cohabited  with  a 
woman,  who  passed  as  his  wife,  left 
lier  and  iier  family  in  England,  and 
went  into  foreign  parts,  where  he  died. 
Here  it  was  held  that  the  executor  was 
not  bound  to  pay  for  necessaries  sup- 
plied to  her  after  his  death,  although 
before  information  of  the  event  had 
reached  her.  In  this  case,  however, 
there  was  only  a  quasi  widow,  and 
perhaps  the  court  felt  the  stigma  of  an 
illicit  cohabitation.  9  B.  &  Cr.  167 ;  4 
Man.  &  Hy.  282.  But  the  precedent 
proved  a  stumbling-block  in  the  next 
case  of  Smout  v.  Ilberry,  10  M.  &  W. 
1.  A  man  who  had  been  in  the  habit 
of  dealing  with  a  butcher  for  meat 
supplied  to  his  house  went  abroad, 
and  his  wife,  who  remained  at  home, 
continued  the  employment  of  the 
butcher.  Here  it  was  held  that  she 
was  not  personally  liable  for  meat  sup- 
plied after  her  husband's  death,  and 
purchased  by  her  in  good  faith,  sup- 
posing him  to  be  still  alive.  The  prin- 
ciple of  the  latter  case  seems  to  have 
been  tliat,  although  the  authority  had 
expired,  yet  the  agent  was  not  in 
fault,  nor  in  the  commission   of   any 


fraud  ;  that  the  revocation  occurred  by 
act  of  God.  But  the  loss  had  to  fall 
somewhere  ;  so  the  court  put  it  upon 
the  butcher.  These  seem  to  be  the 
only  cases  of  importance  on  this  sub- 
ject m  England  ;  and  we  find  none  in 
this  country  to  shed  further  light. 

2  Story  Agency,  §§  488,  497,  and 
notes,  in  9tli  edition.  See  Bradford, 
surrogate  of  New  York  city,  in  Gino- 
chio  V.  Porcella,  3  Bradf.  Sur.  277,  in 
which  this  subject  is  ably  discussed, 
though  the  case  in  question,  upon  a 
close  examination,  appears  to  have 
decided  little  or  nothing.  This  able 
lawyer  evidently  leans  against  the 
authority  of  Blades  v.  Free,  though  he 
expresses  himself  very  guardedly.  See, 
to  the  same  purport,  Terry's  Appeal, 
55  Penn.  St.  344,  where  the  wife  had 
been  deserted  by  her  husband ;  also 
Schoul.  Hus.  &  Wife,  §  438.  And  see 
Stinson  v.  Prescott,  15  Gray,  335  ;  Ster- 
ling V.  Potts,  2  South,  773 ;  Smith  v. 
Allen,  1  Lans.  101 ;  Carter  v.  AVann, 
45  Ala.  343. 

As  to  rights  of  the  widow  affecting 
settlement  of  her  husband's  estate,  see, 
further,  Schoul.  Hus.  &  Wife,  §  440- 
442. 

285 


§  213  THE  DOMESTIC   RELATIONS.  [PART  U. 

§  213.  The  Widow's  Dower.  —  Dower  and  curtesy  had  not, 
perhaps,  the  same  origin :  they  certainly  had  not,  in  all 
respects,  the  same  incidents :  but  both  rights  were  known  in 
England  from  a  very  early  period,  and  both  have  remained 
with  very  little  change  down  to  a  recent  date  in  England 
and  America.  Dower  gave  the  widow  only  a  life  interest  to 
the  extent  of  one  third,  while  curtesy  gave  the  surviving  hus- 
band the  full  life  interest.  But  on  the  other  hand,  dower 
became  absolute  in  the  widow  when  she  outlived  her  hus- 
band, while  curtesy,  as  we  have  seen,  never  attached  at  all 
unless  the  husband  outlived  his  wife  and  was  fortunate 
enough  to  have  had  a  child  by  her  besides.  So  that  in  these 
respects  the  rights  of  husband  and  wife,  on  the  whole,  if  not 
equivalent,  were  nearly  so.  And  as  the  reader  may  have 
already  inferred,  the  general  rule  as  to  descent  of  real  estate 
has  been  that,  subject  to  the  widow's  dower,  the  lands  of  a 
husband  descend  to  his  own  heirs;  while,  subject  to  the  sur- 
viving husband's  curtesy,  the  lands  of  a  wife  descend  to  her 
own  heirs  ;  our  policy  being  to  preserve  real  estate  in  the 
family,  so  to  speak,  of  the  respective  parties  to  a  marriage,  in 
default  of  issue  capable  of  inheriting  from  both.^ 

Dower  is  to  be  defined  as  that  provision  which  the  law 
makes  for  a  widow  out  of  the  lands  or  tenements  of  her  hus- 
band. In  its  technical  sense  the  word  relates  to  real  estate 
only.  It  is  said  to  be  given  for  her  support  and  the  nurture 
of  her  children  ;  but  it  applies,  in  fact,  whenever  she  is  the 
survivor,  without  reference  to  her  actual  circumstances  as  to 
means  of  support  or  the  burden  of  a  family.  Dower  extends 
to  all  estates  of  inheritance  which  the  husband  has  held  at 
any  period  of  the  coverture  in  his  own  right,  and  which  any 
issue  of  hers  might,  if  born,  possibly  inherit.^ 

The  three  essentials  of  dower  nearly  correspond  with  those 
of  curtesy  ;  birth  of  issue,  as  we  have  said,  not  being  requi- 
site.    They    are    marriage,  seisin    of  the    husband,   and   his 


1  See   1   Washb.   Real    Prop.    127,         2  Co.   Litt.  30a;  2  Bl.  Com.  130;  1 
147 ;   Jenks  v.  Langdon,  21   Ohio   St.     Washb.  Real  Prop.  146. 
362. 

286 


CHAr.  XVI  ]  SURVIVING    WIFE's   EIGHTS. 


§^14 


death.     But  a  careful  comparison  of  the  two  estates  at  the 
old  law  shows  some  inequalities.^ 

§  214.  Homestead  Rights.  —  The  homestead  may  properly 
be  considered  in  connection  with  dower ;  for  although  this 
right  is  not  strictly  personal  to  married  women,  inasmuch  as 
it  exists  for  the  benefit  of  both  wife  and  children,  if  not  for 
the  husband  besides,  while  he  lives,  it  is  an  incumbrance 
upon  the  real  estate  of  the  husband  which  is  generally  re- 
leased by  the  wife  in  connection  with  her  dower.  The  home- 
stead system  is  of  recent  origin,  is  peculiar  to  our  American 
States,  and  exists  for  protection  mainly  against  the  husband's 
creditors.  The  policy  on  which  it  rests  —  by  no  means  a  new 
one  in  our  legislation  —  is  that  a  householder  with  a  family 
shall  always  have  a  place  of  shelter  where  legal  process  can- 
not reach  him.  While  open  to  some  serious  objections  as 
concerns  the  rights  of  creditors,  the  homestead  system  is  to  be 
warmly  commended  in  respect  of  the  encouragement  it  affords 
to  agriculture,  and  still  more  as  offering  rewards  for  domestic 
fidelity.2 


'  As  to  dower,  see,  in  general,  1 
Wiislib.  Real  Prop,  154  et  seq. ;  Schoul. 
Hus.  &  Wife,  §§  445-455. 

Wliile  the  law  of  dower  has  been 
gradually  fading  out  of  sight  in  Eng- 
land, since  the  English  Dower  Act,  3 
&  4  Will.  IV.  c.  105,  limiting  the  inter- 
est, it  attains  its  fuller  development  in 
this  country.  Curiously  enough,  most 
of  the  modern  cases  on  this  subject  are 
American.  Our  local  statutes  have 
very  generally  favored  the  widow's 
rights,  and  unless  she  has  joined  her 
husband  in  liis  conveyances  during  his 
life,  or  statutes  restrain  her  rights,  she 
may  usually  assert  the  privilege  at  his 
dcatli.  But  dower  is  found  a  great 
inconvenience  in  an  age  when  real 
estate  passes  from  hand  to  hand  as  an 
article  of  commercial  traffic  ;  and  legis- 
latures show  some  disposition  to  get 
rid  of  it  entirely,  together  with  cur- 
tesy. In  New  York  the  widow  can 
only  claim  her  dower  out  of  lands  of 


whicli  her  husband  died  seised ;  and 
such  is  the  rule  of  various  other  States 
as  to  equitable  estates  at  least,  like  an 
equity  of  redemption.  In  several  States 
her  interest  is  treated  as  something  for 
the  benefit  of  herself  and  children 
jointly.  In  others,  the  "  thirds "  are 
dispensed  with,  and  a  different  rate  is 
fixed.  And  finally,  the  State  of  Indi- 
ana has  set  a  good  example,  which 
otlier  States  have  followed,  of  abolish- 
ing both  curtesj-  and  dower,  and  substi- 
tuting, in  behalf  of  husband  and  wife, 
an  interest  in  fee  in  one  another's  real 
estate,  remaining  at  decease,  on  princi- 
ples analogous  to  the  descent  and 
distribution  of  personal  property  of 
intestates  ;  thus  placing  both  sexes  on 
the  mutual  footing  of  justice,  and  treat- 
ing lands  and  personal  estate  as  sub- 
ject to  corresponding  rules.  Schoul. 
Hus.  &  Wife,  §  455,  and  appendix. 

2  See  1  Washb.  Real  Prop.  4th  ed. 
342  et  seq.,  where  this  system  is  detailed. 

287 


§  215  THE  DOMESTIC   RELATIONS.  [PART    U. 


CHAPTER   XVII. 

SEPARATION   AND   DIVORCE. 

§  215.  Deed  of  Separation  ;  General  Doctrine.  —  Separation  is 
that  anomalous  condition  of  a  married  pair  which  involves  a 
cessation  of  domestic  intercourse,  while  the  impediments  of 
marriage  continue.  Either  from  choice  or  necessity,  as  the 
case  may  be,  they  throw  aside  the  strong  safeguards  of  a  home 
and  mutual  companionship  ;  they  forfeit  their  most  solemn 
obligations  to  protect,  love,  and  cherish  througli  life  ;  they 
continue  united  in  form  and  divided  in  fact.  The  spirit  of 
the  contract,  all  that  dignities  and  ennobles  it,  is  gone ;  but 
the  letter  remains.  Both  parties  submit,  in  some  degree,  at 
least,  to  the  degradation  of  public  scandal ;  they  are  cast 
loose  upon  the  world  without  the  right  to  love  and  be  loved 
again  ;  the  thought  of  kindling  fresh  flames  at  the  altar  of 
domestic  happiness  is  criminal  ;  and  deprived  of  the  comfort 
and  support  of  one  another,  finding  in  society  at  best  but 
timid  sympathy  and  consolation,  the  moral  character  must 
be  strong,  and  doubly  so  must  be  that  of  the  wife,  that  each 
may  buffet  with  success  the  tide  which  bears  onward  to  de- 
struction. Such  a  state  of  things  no  public  policy  can  safely 
favor  ;  but  the  law  sometimes  permits  it,  if  for  no  other 
reason  than  that  an  adequate  remedy  is  wanting  to  check  or 
to  prevent  the  evil ;  and  hence  it  may  be  thought  more  expe- 
dient for  the  courts  to  enforce  such  mutual  contiacts  of  the 
unhappy  pair  as  mitigate  their  troubles,  than  to  dabble  in  a 
domestic  quarrel  and  try  to  compel  unwilling  companion- 
ships. 

Tins  we  conceive  to  be  the  rightful  position  of  the  English 
and  American  equity  courts  whenever  they  see  fit  to  enforce 
separation  agreements.  Some,  to  be  sure,  are  disposed  to 
288 


CHAP.  XVII.]        SEPARATION   AND   DIVORCE.  §  216 

carry  the  argument  further.  Thus,  recent  English  writers 
of  much  repute  refer  to  the  fact  that  divorces  from  bed  and 
board  are  often  granted  in  that  countr}^  and  hence  conclude 
that  it  is  reasonable  for  the  married  parties  themselves  to 
compromise  litigation,  save  court  fees,  and  avoid  public  noto- 
riety, and  therefore  to  agree  to  live  apart,  just  as  though 
the  court  had  entered  a  decree  for  that  purpose.^  But  this 
argument  proves  too  much  ;  for  if  marriage  and  divorce  are 
matters  for  private  compromise,  like  ordinary  contracts,  why 
should  not  the  discontented  pair,  upon  just  cause,  agree  to 
unloose  the  yoke  altogether?  Why  should  they  not  some- 
times obtain  divorce  from  the  bonds  of  matrimony  by  collusion 
and  default,  and  thus  take  the  readiest  means  of  avoiding 
scandalous  and  expensive  suits  ?  One  shrinks  from  such 
conclusions.  In  fact,  divorce  laws  do  not  belong  to  the  par- 
ties themselves,  but  to  the  public  ;  government  guards  the 
sanctity  of  marriage,  just  as  it  demands  the  duty  of  alle- 
giance ;  only  that  perhaps  its  policy  cannot  be  enforced  in 
the  one  case  as  well  as  the  other.  It  is  because  marriage  is 
not  on  the  footing  of  ordinary  contracts,  that  husband  and 
wife  cannot,  on  principle,  compromise,  arbitrate,  or  modify 
their  relationship  at  pleasure.  Furthermore,  the  above  argu- 
ment would  seem  to  suggest  that  where  a  complete  divorce, 
instead  of  divorce  from  bed  and  board,  is  attainable,  deeds  of 
separation  would  not  hold  good  ;  nor,  again,  where  parties 
separate  for  causes  which  do  not  even  justify  divorce  from 
bed  and  board  ;  neither  of  which  positions  is  sustained  by 
the  actual  decisions. 

§  216,  The  Same  Subject;  English  Rule.  — Lord  Eldon  was  of 
the  opinion  that  a  settlement  by  way  of  separate  mainte- 
nance, on  a  voluntary  separation  of  husband  and  wife,  was 
against  the  policy  of  the  law  and  void.  The  ground  of  his 
opinion  was  that  such  settlements,  creating  a  separate  main- 
tenance b}'  voluntary  agreement  between  husband  and  wife, 
were  in  their  consequences  destructive  to  the  indissoluble 
nature  and  the  sanctity  of  the  marriage  contract ;    and  he 

1  Macq.  Hus.  &  Wife,  324  et  scq.  See  also  Jacob  n.  to  Roper  Hus.  &  Wife, 
277;  Peiicliey  Mar.  Settl.  647. 

19  289 


§  216  THE   DOMESTIC   RELATIONS.  [PAPwT   II. 

considered  the  question  to  be  the  gravest  and  most  momen- 
tous to  the  public  interest  that  could  fall  under  discussion  in 
a  court  of  justice.^  But  in  England  final  and  complete  dis- 
solution of  marriage  was,  until  quite  recentl}',  attainable  only 
by  act  of  Parliament.  And  this  method  of  procedure  was 
found  so  difficult,  expensive,  and  uncertain,  that  parties  who 
could  not  live  peaceably  together  were  led  to  consider  some 
lesser  means  of  mitigating  their  misfortune.  To  be  sure 
the  ecclesiastical  courts  awarded  sentences  of  divorce  from 
bed  and  board ;  but  these  merely  discharged  the  parties  from 
the  duty  of  cohabitation,  permitting  them  to  come  together 
afterwards  if  they  should  so  choose ;  and  therefore,  as  a 
writer  observes,  these  sentences  "  did  not  often,  it  must  be 
owned,  repay  the  pains  bestowed  in  obtaining  them."^  The 
English  ecclesiastical  courts  steadily  refused,  moreover,  to 
recognize  separation  deeds.^  Such  a  policy  seems,  however, 
to  have  turned  husband  and  wife  to  their  own  devices  for 
effecting  the  same  result,  with  less  dela)"  and  annoyance,  and 
in  order  to  adjust  more  completely  those  property  arrange- 
ments which  never  could  be  forgotten  in  their  misery.  Deeds 
of  settlement,  trusts,  and  the  intervention  of  the  equity 
courts,  readily  furnished  a  plan  of  operations ;  and  the  ubi- 
quitous conveyancer  appeared  once  more  upon  the  stage  to 
open  the  way,  through  subtle  refinements,  to  freedom  for 
discontented  couples,  and  emolument  for  himself. 

After  a  prolonged  struggle,  and  in  spite  of  public  policy,  it 
is  therefore  fully  established  at  length  in  England,  as  a  doc- 
trine of  equity,  that  deeds  of  separation  may  and  must,  if 
properly  framed,  be  carried  into  execution  by  the  courts.* 
They  may  be  enforced  in  the  common-law  courts  indirectly 
through  the  medium    of  covenants  which   are  entered  into 

1  St.  John  I'.  St.  John,  U  Ves.  530.  620;  II.  v.  W.,  3  Kay  &  Johns,  386, 
See    Mortimer  v.   Mortimer,    2    Hag.     387. 

Consist.  Rep.  318;   Legard  v.  Johnson,  3  1  Bish.  Mar.  &  Div.  5th  ed.  §  634; 

3    Ves.  352 ;    Mercein    v.    People,    25  Mortimer  ?;.  Mortimer,  2  Hag.  Con.  310 ; 

Wend.  77.  Smith  v.  Smith,  4  Hag.  Ec.  (iOO. 

2  Macq.  Hus.  &  Wife,  326.  See  *  Wilson  v.  Wilson,  1  Ho.  Lords. 
Hope  V.  Hope,  3  Jur.  n.  s.  456  ;  s.  c.  26  Cas.  538 ;  5  Ho.  Lords  Cas.  59  ;  Peachey 
L.  J.   Eq.   425;   Peachey   Mar.    Settl.  Mar.  Settl.  620,  and  cases  cited;  Macq. 

Hus.  &  Wife,  329. 

290 


CHAP.  XVII.]         SEPARATION   AND   DIVORCE.  §  217 

between  the  husband  and  trustees  ;  and  in  equity  specific 
performance  will  be  decreed  where  the  stipulations  are  not 
contrary  to  law  nor  in  contravention  of  public  policy .^  An 
agreement  between  husband  and  wife  to  live  apart  is,  per- 
haps, void  as  against  public  policy  ;  but  the  husband's  cove- 
nant with  a  third  party  may  be  valid  and  binding,  although 
it  originates  in  this  unauthorized  state  of  separation  and  re- 
lates directly  to  it.^ 

It  may  seem  strange  that  such  an  auxiliary  agreement 
should  be  enforced,  while  the  principal  agreement  is  held 
contrary  to  the  spirit  and  policy  of  the  law.  Lord  Eldon, 
who  strongly  opposed  the  whole  doctrine  on  principle,  said 
that  if  the  question  were  res  Integra,  untouched  by  dictum  or 
decision,  he  would  not  have  permitted  such  a  covenant  to 
be  the  foundation  of  a  suit  in  equity.^  Sir  William  Grant 
appears  to  have  been  the  first  to  call  attention  to  the  incon- 
sistency of  the  courts  in  this  respect;  and  his  remark  has 
come  down  through  the  later  judges.*  Lord  Rosslyn,  how- 
ever, hit  upon  the  explanation  that  an  agreement  for  a  sepa- 
rate provision  between  the  husband  and  wife  alone  is  void, 
merely  from  the  general  incapacity  of  the  wife  to  contract ;  ^ 
an  explanation  which,  we  submit,  is  quite  unsatisfactory. 
The  true  reason  for  the  anomalous  distinction  appears  to  Tdc 
simply  this :  that  contracts  for  separation  are  in  general  void 
as  against  public  policy,  but  that  the  courts  saw  fit  to  let  in 
exceptions  so  far  as  to  enforce  fair  covenants. 

§  217.  The  Same  Subject ;  American  Rule.  —  Deeds  of  sepa- 
ration were  never  very  common  in  the  United  States.  And 
there  are  at  least  three  very  good  reasons  why  they  should 
be  at  this  day  less  encouraged  than  in  England.  The  first  is 
that  our  legislation  strongly  favors  the  separate  control  of 
married  women  as  to    their   own   acquisitions,  without  the 

1  Vansittart  v.  Vansittart,  2  De  Gex  ^  Westmeath  v.  Westmeatli,  Jac. 
&  Jones,  249.  12G  ;  2  Kent  Com.  176. 

2  Worrall   v.  Jacob,   3    Mer.    255 ;  *  See  Jones  v.  Waite,  5  Bing.  361 ; 
Peachey  Mar.   Settl.  621 ;   Sanders   v.  Frampton  v.  Frampton,  4  Beav.  293. 
Rodney,  16  Beav.  211 ;   Warrender  v.  ^  Legard  v.  Johnson,  3  Ves.  Jr.  852. 
Warrender,  2  CI.  &  Fin.  488.  See  2  Bright  Hus.  &  Wife,  306,  n.  by 

Jacob. 

291 


§  217  THE  DOMESTIC   RELATIONS.  [PAET   II. 

intervention  of  trustees  and  formal  deeds  of  settlement,  thus 
dispensing  with  the  necessity  of  intricate  property  arrange- 
ments. The  second  is  that  equity,  ecclesiastical,  and  com- 
mon-law functions  are  usually  blended  in  the  same  courts 
of  final  ajjpeal,  so  that  a  State  is  at  liberty  to  adopt  the  pre- 
cedents of  the  ecclesiastical  rather  than  the  modern  equity 
tribunals  of  England  for  its  guidance  ;  while  an  American 
court,  —  on  the  other  hand,  could  not  admit  clearly  the  riglit  of 
parties  to  declare  terms  of  private  separation,  without  bring- 
ing confusion  and  uncertainty  upon  its  own  divorce  and 
matrimonial  jurisdiction.  The  third  is  that  sentences  of  di- 
vorce have  been  procured  in  most  of  the  United  States  with 
great  ease,  moderate  expense,  and  little  publicity. 

Early  in  this  century.  Chancellor  Kent  summed  up  authori- 
ties which  showed  that  a  private  separation  was  an  illegal  con- 
tract, in  these  emphatic  words :  "  Nothing  can  be  clearer 
or  more  sound  than  this  conjugal  doctrine."  ^  Contrary  to 
what  until  quite  lately  was  the  rule  in  England,  many  of  our 
States  have  never  directly  sanctioned  separation  deeds  at  all. 
And  a  recent  North  Carolina  case  distinctly  maintains  what 
ought  to  and  may  yet  become  the  pronounced  American  doc- 
trine, —  that  separation  deeds  are  void  as  against  law  and 
public  policy.^ 

Nevertheless  there  are  individual  American  cases,  and  nu- 
merous ones,  where  separation  deeds  have  been  recognized  so 
far  as  to  permit,  and  sometimes  to  require,  parties  to  perform 
such  marital  duties  as  were  incumbent  upon  them,  notwith- 
standing the  fact  of  separation.^  And  the  text-writer  must 
still  further  concede,  however  reluctantly,  that  out  of  a 
regard  for  permitting  married  parties,  who  are  resolved  upon 
separation  without  a  divorce,  to  arrange  decently  for  the  main- 

1  2  Kent  Com.  177  n.  Tex.  570;  Ilitner's  Appeal,  54  Penn. 

2  Collins  V.  Collins,  1  Pliill.  N.  C.  St.  110;  Loud  v.  Loud,  4  Busli,  453; 
Eq.  153.  Dutton  v.  Dutton,  30  Ind.  452  ;  McKee 

3  1  Bish.  Mar.  &  Div.  §  639  el  srq. ;  v.  Reynolds,  20  Iowa,  578;  Walker  v. 
Schoul.  Hus.  &  Wile,  §  473;  Goodrich  Beal,  3  Cliff.  155;  Dupre  v.  Eein,  56 
V.  Bryant,  4  Sneed,  325;  McCubbin  v.  How.  (N.  Y.)  Prac.228;  Demingf.  Wil- 
Patterson,  16  Md.  179  ;  Griffin  v.  Banks,  liams,  26  Conn  226 ;  Cliapman  v.  Gray, 
37  N.  Y.  621 ;  Joyce  v.   McAvoy,  31  8  Ga.  341. 

Cal.  273;  Walker  i-.  Stringfellow,  30 

292 


CHAP.  XVII.]         SEPAEATION   AND   DIVORCE.  §  218 

tenance  of  wife  and  offspring,  and  for  a  just  mutual  disposi- 
tion of  property  rights,  our  courts  are  in  the  latest  cases  fol- 
lowing the  English  lead  so  as  to  sustain  the  enforcement  of 
whatever  covenants  might  be  pronounced  fair  in  themselves 
on  behalf  of  parties  separated  or  about  to  separate.  Some  of 
these  cases  sustain  such  covenants  upon  a  suggestion  that, 
separation  being  inevitable,  tliey  are  prepared  to  make  the 
best  of  it,  not  conceding  the  support  of  contracts  calculated  to 
favor  a  separation  which  has  not  yet  taken  place  or  been  full}' 
decided  upon.^  An  unsatisfactory  distinction  truly,  nor  one 
likely  to  afford  a  resting-place  ;  as  though  this  half  counten- 
ance were  not  calculated  of  itself  to  favor  future  separation  ; 
and  yet  a  legal  distinction.  It  seems  to  stop  short  of  enforc- 
ing specific  performance  of  a  written  agreement  for  a  separa- 
tion deed,  and  to  refuse  direct  countenance  to  a  stipulation 
that  husband  and  wife  shall  live  apart  in  time  to  come. 

§  218.  The  Same  Subject;  ^w•hat  Covenants  are  upheld.  An 
indenture  with  tlie  intervention  of  a  trustee  or  trustees  is  in 
this  country  held  the  safer  sort  of  instrument  where  separa- 
tion is  contemplated,  and  such  are  the  deeds  usually  drawn 
and  construed  by  our  courts.  It  is  desirable  that  the  hus- 
band and  trustee  mutually  covenant  together.  But  so  con- 
siderably are  husband  and  wife  now  emancipated  from  the 
need  of  intermediate  parties,  that  a  fair  transaction  of  the 
present  nature  has  been  sometimes  sustained  in  certain  States, 
where  no  trustee  at  all  was  interposed.^  This  cannot  be 
affirmed  of  all,  nor  of  most  of  the  United  States  ;  ^  nor  can 
such  a  contract  ever  prevail  against  the  wife's  interests  where 
she,  in  such  negotiation  and  arrangements,  does  not  appear 
to  have  acted  with  perfect  freedom  and  a  perfect  understand- 
ing of  her  individual  rights.^    Sometimes   an  agreement  or 

1  Fox  V.  Davis,  113  Mass.  255,  per  wife,  whose  actual  consideration  was 
Endicott,  J.,  and  cases  cited  ;  Button  v.  relinquisiiment  of  the  right  to  support 
Hutton,  3  Barr,  100;  Randall  v.  Ran-     on  her  part. 

dall,  37  Mich.  5Go,  per  Cooley,  C.  J. ;  ^  Simpson  v.  Simpson,  4  Dana,  140 ; 

Garver  y.  Miller,  16  Oliio  St.  527 ;  Rob-  Carter   v.   Carter,   14   Sm.   &   M.   59; 

ertson  v.  Robertson,  25  Iowa,  350 ;  Dut-  Stephenson  v.  Osborne,  41  Miss.  119  ; 

ton  V.  Dutton,  30  Ind.  452.  McKennan  v.  Phillips,  6  Whart.  571. 

2  In  Randall  v.  Randall,  37  Mich.  *  Switzer  v.  Switzer,  26  Gratt.  574. 
663,  a  deed   passed   from  husband  to 

293 


§  218  THE   DOMESTIC    RELATIONS.  [PART   II. 

bond  to  separate  is  executed  by  husband  and  wife,  accom- 
panied by  the  conveyance  of  property  to  a  trustee  for  the  use 
of  the  wife  ;  which  hitter,  however,  is  the  instrument  tlie 
court  construes  and  uj^holds.^ 

Inasmuch,  then,  as  separation  deeds  are  not  enforced  either 
in  England  or  the  United  States,  at  the  present  day,  without 
regard  to  the  poHcy  of  stipulations  or  covenants  in  question, 
the  limit  of  judicial  support  may  be  drawn  at  the  support  of 
provisions  which,  supposing  separation  inevitable,  carry  the 
fulfilment  of  conjugal  duties  and  rights  after  a  reasonable  and 
becoming  manner  into  that  relation.  For  equity  can  only 
sanction  what  is  fair  and  beneficial ;  and  here  cognizance  is 
taken,  not  of  the  separation,  but  of  circumstances  and  a  set- 
tlement attending  that  state.  The  covenant  or  stipulation 
itself,  the  whole  settlement,  must  be  free  from  exception  and 
such  as  equity  might,  under  other  instances  of  its  jurisdiction, 
have  sustained.^  Where,  therefore,  the  provision  is  for  the 
benefit  of  wife  and  children,  as  in  providing  suitable  mainte- 
nance during  the  separation,  such  a  covenant  or  stijDulation  is 
to  be  highly  favored.^  Where  an  equitable  and  suitable  divi- 
sion is  made  of  the  property,  whose  benefits  have  been 
enjoyed  during  the  coverture,  this,  too,  may  well  be  upheld.^ 
The  spouse  wlio  covenants  to  deliver  up  certain  property  to 
the  other  should  make  that  covenant  as  advantageous  to  the 
latter  as  Avas  reasonably  intended.^  It  is  fair  that  a  hus- 
band's covenant  or  stipulation  of  proper  allowance  for  the 
wife's  support  shotild  be  accompanied  by  the  trustee's  cove- 
nant or  stipulation  of  indemnity  against  his  wife's  debts.^  In 
respect  of    directly  compelling   the    married  parties  to  live 


^  Keys    i\    Keys,    11     Heisk.    425;  separation  deed,  lias  covenanted  to  de- 

Dixon  V.  Dixon,  23  X.  J.  Eq.  316.  liver   up.     Hamilton  v.  Hector,  L.  R. 

-  Switzer  V.  Switzer,  26  Gratt.  574.  1.3   Eq.    511.     And   see   McAllister   ;;. 

3  Fox    V.    Davis,    113     Mass.    2-55;  McAllister,  10  Heisk.  345. 

Randall    v.    Randall,    37    Mich.    563;  e  Dnpre   v.   Rein,  56    How.   (N.  Y.) 

Walker  r.  Walker,  9  W.ill.  743.  Prac.  228  ;    Harsliberger  v.  Alger,  31 

*  Cooley,  C.  J.,  in  Randall  v.   Ran-  Gratt.  52  ;  Reed  ik  Beazley,  1  Blackf. 

dall,  37  Mich.  -563.  97.     Such    a   provision   of   indemnity, 

^  Thus,  it  is  held  that  a  husband  has  though  usual,  is  not  essential.     Smith 

no  right  to  retain  copies  of  his  wife's  v.  Knowles,  2  Grant,  413. 
journals  and  diaries  which  he,  under  a 

294 


CHAP.  XVII.]         SEPARATION  AND   DIVOECE. 


§218 


apart  under  their  agreement,  separation  deeds  cannot  be 
pronounced  good  upon  any  just  conception  of  public  policy 
and  the  divorce  laws  ;  ^  and  especially  must  this  rule  hold  true 
where  the  compusion  sought  is  under  circumstances  of  sepa- 
ration not  justifying  a  divorce. 

The  potential  mingling  of  legal  and  illegal  conditions  in 
these  agreements,  with  the  view  of  entering  upon  a  status 
which  of  itself  is  inconsistent  with  a  due  fulfilment  of  the 
moral  and  legal  duties  of  matrimony,  occasions  judicial  con- 
fusion, which  is  more  likelj'"  to  increase  than  decrease  while 
separation  deeds  are  judicially  recognized.  But  it  is  recently 
held  in  England  that  if  some  covenants  in  such  a  deed  are 
legal  and  proper,  while  others  are  not,  the  former  are  enforce- 
able by  themselves.2 


1  Warrender  v.  Warrender,  2  CI.  & 
F.  488,  527,  per  Lord  Brougham; 
Brown  v.  Peck,  1  Eden,  140  ;  McCrock- 
lin  V.  McCrocklin,  2  B.  Monr.  370; 
McKennan  v.  Phillips,  6  Whart.  571, 
per  Gibson,  C.  J. 

Whether  articles  of  separation  can 
debar  one  from  procuring  a  divorce 
for  cause,  see  Schoul.  Hus.  &  Wife, 
§§  476,  482.  If  separation  never  took 
place,  the  deed  is  void.  Hamilton  v. 
Hector,  L.  R.  13  Eq.  511.  As  to  recon- 
ciliation after  separation,  see  Schoul. 
Hus.  &  Wife,  §  478. 

2  Hamilton  v.  Hector,  L.  R.  13  Eq. 
511. 

While  in  many  parts  of  the  United 
States  is  seen  an  increasing  tendency 
to  adopt  the  English  theory  concerning 
separation  covenants,  with,  however, 
more  looseness  as  to  tiie  form  such 
transactions  shall  take,  tl  e  latest  Eng- 
lish cases  quite  transcend  the  distinc- 
tions behind  which  our  courts  take 
refuge,  and  the  earlier  dicta  of  their 
own  Eldon  and  Brougham.  Divorce 
being  there  regarded  with  less  favor 
than  in  the  United  States,  notwith- 
standing the  late  statutes  on  tlie  subject, 
trust  deeds  and  voluntary  separation 
are, upon  mature  experience,  treated  as, 
on  the  whole,  the  more  decent  and  re- 
spectable method  for  unhappy  couples 


to  adopt,  than  that  somewhat  novel  • 
recourse  to  courts,  which  brings  a 
scandalous  cause  into  public  contro- 
versy. See  Peachey  Mar.  Settl.  647, 
(548.  English  policy,  indeed,  in  its 
inception  is  quite  different  from  Amer- 
ican in  this  regard,  a  fact  which 
American  jurists  should  bear  well  in 
mind.  And  under  legislation  of  date 
much  later  than  the  divorce  acts  which 
were  copied  from  the  United  States, 
separation  deeds  are  plainly  legalized. 
Stat.  36  &  37  Vict.,  cited  in  Re  Besant, 
L.  R.  11  Cli.  D.  508.  Thus,  the  cus- 
tody of  the  offspring  may  now  be  dis- 
tinctly provided  for,  as  it  would  appear, 
in  an  English  deed  of  separation.  But 
at  the  same  time,  chancery,  where  the 
child  is  made  a  ward  of  tlie  court,  will 
protect  the  child's  welfare.  lie  Besant, 
L.  R.  11  Ch.  D.  508 ;  Besant  v.  Wood, 
L.  R.  12  Ch.  D.  605.  See,  further, 
Schoul.  Hus.  &  Wife,  §§  480-482. 

Upon  still  another  point,  namely,  tlie 
restitution  of  conjugal  rights,  tlie  Eng- 
lish chancery  has,  of  late,  departed 
widely  from  its  earlier  precedents.  In 
Great  Britain,  where  this  suit  for  resti- 
tution of  conjugal  rights  has  always 
been  permitted,  it  was  formerly  ruled 
in  the  matrimonial  courts,  and  seemed 
to  be  the  well-settled  doctrine,  that  a 
deed  of  separation  afforded  no  bar  to 

295 


§219 


THE   DOMESTIC   RELATIONS. 


[part  II. 


§  219.  Abandonment;  Rights  of  Deserted  "Wife.  —  Abandon- 
ment by  either  spouse  consists  iu  leaving  the  other  wilfully 
and  with  the  intention  of  causing  their  perpetual  separation. 
As  to  the  right  of  the  wife,  when  abandoned  by  her  husband, 
to  earn,  contract,  sue,  and  be  sued,  to  much  the  same  effect 
as  a  feme  sole,  while  such  abandonment  actually  lasts,  the 
current  of  Araericau  authority,  legislative  and  judicial  alike, 
decidedly  favors  so  just  a  doctrine.^  Modern  married 
women's  acts  often  permit  the  wife  to  do  quite  or  nearly  as 
much  when  not  abandoned  at  all.  And  in  England,  recent 
statutes  secure  to  a  married  woman  privileges  to  a  similar 
extent  under  like  circumstances  of  abandonment.^    The  test  is. 


such  a  suit  whenever  either  party 
chose  to  enforce  tlie  remedy  ;  and  this, 
even  tliougli  the  deed  in  terms  forbade 
such  proceedings.  1  Bish.  Mar.  &  Div. 
§  634,  and  numerous  cases  cited.  This 
was  in  accordance  with  the  first  idea 
tliat  separation  deeds  miglit  indirectly 
be  tolerated  for  tiieir  beneficial  cove- 
nants as  concerned  parties  bent  upon 
separation,  but  not  directly  upheld. 
That  rule  has  changed ;  for,  as  the 
English  statute  now  provides,  a  deed 
of  separation  which  contains  a  cove- 
nant forbidding  the  suit  for  restitution 
of  conjugal  rights  to  be  brought,  will 
bar  such  a  suit.  Marshall  v.  Marshall, 
39  L.  T.  640.  And  to  one  separated 
spouse  chancery  will  now  grant  an  in- 
junction, by  virtue  of  such  a  covenant, 
to  restrain  the  other  spouse  from  suing 
for  restitution  of  conjugal  rights.  Be- 
sant  V.  Wood,  L.  R.  12  Ch.  D.  605,  and 
cases  cited.  Under  the  English  divorce 
act  of  20  &  21  Vict.  c.  85,  suits  for 
restitution  of  conjugal  rights  are  still 
permitted.  1  Bish.  Mar.  &  Div.  §  771. 
Compromise,  too,  of  the  suit  for  resti- 
tution of  conjugal  rights,  is  permitted 
in  England.  Stanes  v.  Stanes,  L.  R. 
3  P.  D.  42.  There  is  this  fundamental 
distinction  between  the  English  suit 
for  divorce  or  judicial  separation,  and 
the  suit  for  restitution  of  conjugal 
rights  :  that  in  the  former  instance  the 
chief  object  is  to  free  the  petitioner  ia 

296 


whole  or  in  part  from  tlie  marriage 
obligations  ;  but  in  the  latter  to  control 
the  other  spouse  so  as  to  compel  once 
more  an  unwilling  cohabitation.  See 
language  of  court  in  Firebrace  v.  Fire- 
brace,  39  L.  T.  94.  Restitution  of  con- 
jugal rights  is  a  remedy  unknown  in 
the  United  States,  where  courts  may 
finally  part,  but  cannot  forcibly  reunite, 
the  separated  spouses.  See  Schoul. 
Hus.  &  Wife,  §§  482,  483 ;  1  Bish.  Mar. 
&  Div.  5th  ed.  §  771.  And  see  as  to 
specific  performance  of  an  agreement 
to  separate,  Gibbs    v.  Harding,  L.  R. 

5  Ch.  336. 

1  See  Shaw,  C.  J.,  in  Abbott  v.  Bay- 
ley,  6  Pick.  89 ;  Benadum  v.  Pratt,  1 
Ohio  St.  403;  Spier's  Appeal,  2  Casey, 
233;  Mead  v.  Hughes,  15  Ala.  141; 
Rhea  t-.  Rhenner,  1  Pet.  105 ;  iloore  v. 
Stevenson,  27  Conn.   14 ;  Schoul.  Hus, 

6  Wife,  §  486,  and  numerous  cases 
cited,  and  appendix.  And  see  the 
numerous  statutes  in  almost  every 
State  in  the  Union,  enlarging  the  rights 
of  married  women  in  such  cases. 

2  See  Stat.  20  &  21  Vict.  c.  85 ;  Mid- 
land R.  R.  Co.  V.  Pye,  10  C.  B.  n.  s.  179. 
Chancery  has  long  moulded  its  pro- 
ceedings to  secure  a  like  privilege.  In 
re  Lancaster,  23  E.  L.  &  Eq.  127; 
Johnson  v.  Kirkwood,  4  Dru.  &  War. 
379.  A  right  of  action  is  conferred, 
too,  under  33  &  34  Vict.  c.  93.  Moore 
V.  Robmson,  27  W.  R.  312. 


CHAP    XVII.j         SEPAEATION   AND   DIVORCE.  §  220 

observes  a  recent  American  case,  whether  the  husband  may  be 
deemed  to  have  renounced  his  marital  rights  and  rehxtionsJ 

The  great  contrariety  of  current  legislation  is  a  great  ob- 
struction, however,  to  formulating  a  decided  rule  of  English 
and  American  jurisprudence  on  this  point.  We  have  seen 
that,  under  the  old  common-law  doctrine  of  coverture,  the 
wife  could  not  sue  or  be  sued,  or  otherwise  act  as  a  single 
woman,  unless  tlie  husband  was  under  the  disability  of  a 
civil  death,  which  meant  originally  banishment  and  abjura- 
tion of^the  realm.  The  wife's  rights  being  enlarged  by  stat- 
ute under  such  circumstances,  we  have  therefore  to  inquii'e 
into  the  scope  of  any  statute  in  point.  Some  of  our  local 
acts  are  construed  as  affording  a  substitute  for  the  common- 
law  rule,  and  not  as  merely  cumulative,  and  hence  require  a 
literal  interpretation.  In  general,  such  legislation  is  to  be 
considered  as  grafted  upon  the  common  law  of  coverture 
which  prevailed  when  this  country  was  settled,  and  at  the 
Revolution.  It  contemplates  abandonment,  and  not  what 
might  be  designed  as  a  merely  temporary  withdrawal  from 
cohabitation  ;  and  it  regards  the  husband  in  general  as  com- 
pletely out  of  the  jurisdiction  of  the  State,  never  having 
entered  it,  or  else  having  forsaken  it.^ 

§  220.  Divorce  Legislation  in  General.  —  Divorce  laws  have 
constantly  given  rise  to  most  interesting  and  earnest  discus- 
sions; and  men  differ  very  widely  in  their  conclusions,  while 
all  admit  the  subject  to  be  of  the  most  vital  importance  to  the 
peace  of  families  and  the  welfare  of  nations.  Some  favor  a 
rigid  divorce  system  as  most  conducive  to  the  moral  health  of 
the  people ;  others  urge  a  lax  system  on  the  same  grounds. 
On  two  points  only  do  English  and  American  jurists  seem  to 
agree  ;  first,  that  the  government  has  the  right  to  dissolve  a 
marriage  during  the  lifetime  of  both  parties,  provided  the 
reasons  are  weighty  ;  second,  that,  unless  those  reasons  are 
weighty,  husband  and  wife  should  be  divorced  only  by  the 
hand  of  death .^ 

1  Ayer  v.  Warren,  47  Me.  217.  separate  maintenance  to  a  wife,  seefur- 

2  See,   at  length,    Sclioul.    IIus.   &    ther,  Rclioul.  Hus.  &  Wife,  §§  485,487. 
Wife,  §  486,  and  appendix.     And  as  to         ^  Upon  divorce  causes  and  divorce 

297 


§  221  THE  DOMESTIC   RELATIONS.  [PART   n. 

§  221.  Effect  of  Absolute  Divorce  upon  Property  Rights. — 
The  effect  of  divorce  from  bonds  of  matrimony  upon  the 
property  rights  of  married  parties  is  substantially  that  of 
death,  or  rather  annihilation.  And,  save  so  far  as  a  statute 
may  divide  the  property  or  restore  to  each  what  he  or  she 
had  before,  or  a  decree  for  alimony  may  fasten  directly  upon 
the  property  in  question,  the  guilt  or  innocence  of  either 
spouse  does  not  affect  the  case.^  This  is  a  topic  upon  which 
the  common  law,  from  the  iufrequency  of  divorce,  furnishes 
no  light,  except  by  analogies.  The  settled  usage  of  Parlia- 
ment in  granting  divorce  has  been  to  introduce  property 
clauses  to  the  above  effect  into  the  sentence  of  dissolution 
regulating  the  rights  and  liabilities  of  the  respective  parties,^ 
but  even  in  these  cases  the  rights  of  divorced  parties  as  to 
tenancy  by  the  curtesy,  chattels  real,  and  rents  of  the  wife's 
lands,  are  still  unsettled  ;  and  in  general,  the  consequence  by 
act  of  Parliament  "  does  not  very  clearly  appear."  ^  But 
under  the  new  English  Divorce  Act,^  it  is  held  in  a  recent 
case  that  where  the  wife,  at  the  date  of  the  decree  of  divorce 
a  vinculo,  was  entitled  to  a  reversionary  interest  in  a  sum  of 
stock  which  was  not  settled  before  her  marriage,  and  had 
been  the  subject  of  a  postnuptial  settlement ;  and  after  the 
decree  the  fund  fell  into  possession ;  her  divorced  husband 
had  no  right  to  claim  it.^  The  English  doctrine,  as  thus  indi- 
cated, is  that  the  same  consequences  as  to  property  must 
follow  the  decree  of  dissolution  by  the  divorce  court  as  if 
the  marriage  contract  had  been  annihilated  and  the  marriage 
tie  severed  on  that  date.  Such,  too,  was  the  spirit  of  later 
decisions.^ 

procedure,  see  Schoul.   Hus.   &  Wife,  law,  namely,  by  a  decree  of  dlssolu- 

Part  IX. ;  also  Bish.  Mar.  &  Div.  2  vols,  tion  ;  and,  as  the  husband  was  unable, 

passim.  during  the  existence  of  the  contract,  to 

1  See  Harvard  College  v.  Head,  111  reduce  this  chattel  into  possession,  I 
Mass.  209.  must  hold  that  tlie  property  remained 

2  Macq.  Hus.  &  Wife,  210,  214.  the  property  of  the  wife."     Wilkinson 
»  2  Bright  Hus.  &  Wife,  366.  v.  Gibson,  L.  R.  4  Eq.  162. 

4  Stats.  20  &  21  Vict.  c.  8.5;  21  &  6  p^att  v.  Jenner,  L.  11.   1  Ch.  493; 

22  Vict.  c.  108;  23  &  24  Vict.  c.  144.  Fussell  v.  Dowding,   L.  R.  14  Eq.  421 ; 

6  Says       Vice-Chancellor       Wood ;  Swift  v.  Wenman,  L.   R.   10  Eq.  15 ; 

"  Here    the   contract   has    been   deter-  Prole  v.  Soad}^  L.  R.  3  Ch.  220.     And 

mined  by  a  mode  unknown  to  the  old  one  who  obtained  a  sentence  of  dissolu- 

298 


CHAP.  XVII.]         SEPARATION  AND   DIVORCE. 


§221 


In  settlements  and  trusts  involving  intricate  family  arrange- 
ments, however,  the  English  rule  is  not  yet  uniform  and  pos- 
itive.i 

In  this  country  the  effect  of  divorce  a  vinculo  is  frequently 
regulated  by  statute.  And  in  general,  and  independently  of 
statute,  all  transfers  of  property  actually  executed  before 
divorce,  whether  in  law  or  in  fact,  remain  unaffected  by  the 
decree.  For  instance,  personal  choses  of  the  wife,  already 
reduced  to  possession  by  the  husband,  remain  his.^  But  as 
to  rights  dependent  on  marriage  and  not  actually  vested,  a 
full  divorce,  or  the  legal  annihilation,  ends  them.  This 
applies  to  curtesy,  dower,  the  right  to  reduce  choses  into 
possession,  and  property  rights  under  the  statutes  of  distri- 
bution.^ These  doctrines  are  set  forth  in  local  codes,  which 
frequently  save  certain  rights,  such  as  the  wife's  dower  where 
divorce  is  occasioned  by  her  husband's  misconduct.  And  a 
provision  under  an  antenuptial  contract,  which  is  plainly 
intended  as  a  substitute  or  equivalent  for  dower  in  case  the 
wife  survives  the  husband,  is  barred  by  their  divorce.* 


tion  of  marriage  was  held,  moreover, 
not  liable  to  be  joined  in  an  action  for 
tort  committed,  by  his  wife  during  tlie 
coverture.  Capel  v.  Powell,  17  C.  B. 
N.  s.  743. 

1  The  most  recent  oases  show  a  de- 
cided indisposition  to  forfeit  a  husband's 
rights  to  a  trust  fund  where,  at  all 
events,  the  effect  of  annihilation  would 
be  to  disturb  the  remote  right  of  some 
innocent  party,  or  without  consider- 
ation as  to  which  spouse  offended. 
Fitzgerald  v.  Chapman,  L.  R.  1  Ch.  D. 
563.  Jessel,  M.  R.,  here  discredits  Fus- 
sell  V.  Dowding,  and  other  cases  cited 
suirra.  And  see  Burton  v.  Sturgeon, 
L,  R.  2  Ch.  D.  318 ;  Codrington  v.  Cod- 
rington,  L.  R.  7  H.  L.  854.  And  in 
certain  causes  the  Divorce  Act  confers 
the  power  to  modify  the  marriage  set- 
tlement upon  final  sentence.  20  &  21 
Vict.  c.  85,  §  45.  Where  application  is 
made  for  that  purpose,  the  judicial 
object  of  thus  proceeding  is,  apparently, 
to  prevent  the  innocent  party  from  be- 
ing injuriously  affected  in  property  by 


the  decree.  Maudslay  v.  Maudslay, 
L.  R.  2  P.  D.  25G.  On  the  decree  for 
dissolution  of  marriage  becoming  abso- 
lute, it  takes  effect  from  the  date  of  the 
decree  nisi.  Prole  v.  Soady,  L.  li.  3 
Ch.  220. 

2  Lawson  v.  Shotwell,  27  Miss.  630. 

3  Dobson  V.  Butler,  17  Mo.  87;  4 
Kent  Com.  53,  n.,  54 ;  Given  v.  Marr, 
27  Me.  112;  Wheeler  v.  Hotchkiss,  10 
Conn.  225 ;  Calame  v.  Calame,  24  N.  J. 
Eq.  440 ;  Hunt  v.  Thompson,  61  Mo. 
148 ;  Schoul.  Hus.  &  Wife,  §  559 ;  Rice 
V.  Lumley,  10  Ohio  St.  596.  But  see 
Wait  V.  Wait,  4  Comst.  95. 

*  Jordan  v.  Clark,  81  111.  4G5.  Here 
divorce  vvas  granted  to  A.  for  the  fault 
or  misconduct  of  A.'s  wife,  but  the 
principle  of  the  case  was  that  the  wife 
could  only  be  entitled  to  receive  the 
provision  as  A.'s  widow.  A  divorce  a 
vinculo  obtained  by  the  wife,  though  for 
tiie  husband's  misconduct,  bars  dower. 
Calame  v.  Calame,  24  N.  J.  Eq.  440. 
And  see  Gleason  v.  Emerson,  51  N.  II. 
405 ;  Hunt  v.  Tliompson,  61  Mo.  14& 

299 


§  222 


THE   DOMESTIC    RELATIONS. 


[part   II. 


As  to  torts  a  similar  rule  would  probably  apply .^  Separate 
property  of  a  wife  settled,  or  otherwise  vested  in  her,  is  not 
to  be  disturbed  by  a  divorce.^ 

§  222.  Effect  of  Partial  Divorce  upon  Property  Rights.  — 
Divorce  from  bed  and  board,  or  nisi,  produces,  however,  no 
such  sweeping  results  ;  the  cardinal  doctrine  here  being  that 
the  marriage  remains  in  full  force,  although  the  parties  are 
allowed  to  live  separate.  Here  we  must  consult  the  phrase- 
ology of  local  statutes  with  especial  care,  in  order  to  deter- 
mine the  respective  rights  and  duties  of  the  divorced  parties. 
Thus  the  consequence  of  judicial  separation,  under  the 
present  divorce  acts  of  England,  is  to  give  to  the  wife,  so  long 
as  separation  lasts,  all  property  of  every  description  which 
she  may  acquire,  or  which  may  come  to  or  devolve  upon  her, 
including  estates  in  remainder  or  reversion ;  and  such  prop- 
erty may  be  disposed  of  by  her  in  all  respects  as  if  she  were  a 
feme  sole  ;  and  if  she  dies  intestate  it  goes  as  if  her  husband 
had  then  been  dead.^ 

In  this  country,  independently  of  statutory  aid,  the  prop- 


Cf.  New  York  statute,  construed  in 
Schiflfer  v.  Pruden,  G4  N.  Y.  47. 

1  Chase  v.  Chase,  G  Gray,  157  ;  2 
Bish.  Mar.  &  Div.  §  724;  Schoul.  Hus. 
&  Wife,  §  559.  And  see  Capel  v. 
Powell,  17  C.  B.  N.  s.  743. 

'If  tiie  husband  receives  any  prop- 
erty of  the  wife  after  divorce,  she  may 
recover  it  in  a  suit  for  money  had  and 
received.  2  Bisli.  Mar.  &  Div.  714; 
Legg  V.  Legg,  8  Mass.  99.  See  Kint- 
zinger's  Estate,  2  Aslmi.  455.  How 
far,  on  the  divorce  of  the  husband,  his 
assignee  may  claim  against  the  wife 
does  not  clearly  appear ;  but  where  tlie 
divorce  was  obtained  tlirough  liis  fault, 
the  wife's  equitable  provision,  it  seems, 
will  be  ftxvorably  regarded  as  against 
him.  2  Bish.  §  715,  and  conflicting 
cases  compared ;  Woods  v.  Simmons, 
20  Mo.  363 ;  2  Kent  Com.  136  et  seq. 
Divorce  takes  away  the  husband's 
right  of  administration  upon  the  estate 
of  his  divorced  wife  2  Bish.  Mar.  & 
Div.  5th  ed.  §  725;  Altemus's  Case,  1 
Ashm.    49.    See,    furtlier,  as   to    the 

300 


effect  of  divorce,  Schoul.  Hus.  &  Wife, 
§  561,  and  cases  cited. 

2  Barclay  v.  Waring,  58  Ga.  86; 
Harvard  College  v.  Head,  111  Mass. 
209  ;  Schoul.  Hus.  &  Wife,  §  500 ;  Jack- 
son V.  Jackson,  91  U.  S.  Supr.  122. 

It  is  held,  and  upon  that  principle  of 
sound  policy  which  maintains  inviolate 
the  sanctity  of  the  marriage  union 
while  discouraging  stale  and  doubtful 
litigation  to  which  their  final  and  angry 
rupture  might  incite  one  of  the  married 
parties,  that  a  divorced  wife  cannot 
maintain  an  action  against  her  divorced 
husband  upon  an  implied  contract 
arising  during  coverture,  Pittman  v. 
Pittman,  4  Oreg.  298 ;  nor  for  an  al- 
leged assault  committed  upon  her  while 
they  were  husband  and  wife,  Abbott  v. 
Abbott,  67  Me.  304.  Such  remedies,  so 
far  as  available  at  all,  ought  to  be  suf- 
ficiently available  at  the  time  the  right 
accrued  and  during  marriage. 

8  Stats.  20  &  21  Vict.  c.  85,  §  25  :  21 
&  22  Vict.  c.  108,  §  8.  See  Romiliy, 
M.  R.,  in  Re  Insole,  L.  R.  1  Eq.  470. 


CHAP.  XVII.]         SEPARATION   AND   DIVORCE. 


§222 


erty  rights  of  the  parties  divorced  from  bed  and  board  remain 
in  general  unchanged.  For  this  divorce  is  only  a  legal  sepa- 
ration, terminable  at  the  will  of  the  parties ;  the  marriage 
continuing  in  regard  to  everything  not  necessarily  withdrawn 
from  its  operation  by  the  divorce.^  Thus,  the  husband  still 
inherits  from  the  wife,  and  the  wife  from  the  husband ;  the 
one  takes  his  curtesy,  the  other  her  dower;  and  even  the 
right  of  reducing  the  wife's  cJtoses  in  action  into  possession 
still  remains  to  the  guilty  husband.^  But  chancery,  by  virtue 
of  its  jurisdiction  in  awarding  the  wife  her  equity  to  a  settle- 
ment, may,  and  doubtless  will,  keep  the  property  from  his 
grasp,  and  do  to  both  what  justice  demands."^  On  principle, 
the  right  to  administer  would  seem  not  to  be  forfeited  by 
one's  divorce  from  bed  and  board .^ 


1  Dean  v.  Richmond,  5  Pick.  461 ;  2 
Bish.  Mar.  &  Div.  5th  ed.  §  720  et  seq. 

2  Clark  I'.  Clark,  6  Watts  &  S.  85 ; 
Kriger  v.  Day,  2  Pick.  316  ;  Smodt  v. 
Lecatt,  1  Stew.  590;  Ames  v.  Chew,  5 
Met.  320. 

*  Holmes  v.  Holmes,  4  Barb.  295; 
Schoul.  Hus.  &  Wife,  §§  161,  5G2,  563. 

*  But  see  limitations  suggested  in 
Schoul.  Hus.  &  Wife,  §  5G3. 

The  recent  English  statutes  give 
the  wife,  upon  sentence  of  judicial 
separation,  the  capacity  to  sue  and  be 
sued  on  somewhat  the  same  footing  as 
a,  feme  sole.  The  rule  in  the  United 
States  is  not  uniform  :  but  the  ten- 
dency is  clearly  in  the  same  direction. 
See  2  Bish.  Mar.  &  Div.  5th  ed.  §  737, 
and  cases  cited  ;  Lefevres  v.  Murdock, 
Wright,  205 ;  Clark  v.  Clark,  6  Watts 
&  S.  85.  And  see,  further,  as  to  statu- 
tory provisions,  including  a  division  of 
property,  Schoul.  Hus.  &  Wife,  §  564, 
and  appendix ;  2  Bish.  Mar.  &  Div. 
§§  509-519. 

Concerning  the  conflict  of  laws,  with 
respect  of  (1)  marriage,  (2)  marital 
rights  and  duties,  and  (3)  divorce, 
see  Schoul.  Hus.  &  Wife,  §§  566-575. 
As  affecting  the  rights  and  duties 
of  the  marriage  relation,  Story,  in  his 
Conflict  of  Laws,  after  an  extended 
discussion   of    the   great    diversity  of 


laws  existing  in  different  countries, 
as  to  the  incidents  of  marriage,  lays 
down  thefoHowingprimary  rules,  wliich 
are  of  general  application.  (1)  Wiiere 
parties  are  married  in  a  foreign  coun- 
try, and  there  is  an  express  contract 
respecting  their  rights  and  property, 
present  and  future,  it  will  be  held 
equally  valid  everywhere,  unless,  under 
the  circumstances,  it  stands  prohibited 
by  the  laws  of  the  country  where  it  is 
sougiit  to  be  enforced.  It  will  act 
directly  on  movable  property  every- 
where. But  as  to  immovable  property 
in  a  foreign  territory,  it  will,  at  most, 
confer  only  a  riglit  of  action,  to  be  en- 
forced according  to  the  jurisdiction  rej 
sitce.  (2)  Where  such  an  express  con- 
tract applies  in  terms  or  intent  only  to 
present  property,  and  there  is  a  change 
of  domicile,  the  law  of  the  actual  dom- 
icile will  govern  the  rights  of  the  par- 
ties as  to  all  future  acquisitions.  (3) 
Where  there  is  no  express  contract,  the 
law  of  the  matrimonial  domicile  will 
govern  as  to  all  the  rights  of  the  parties 
to  their  present  property  in  that  place, 
and  as  to  all  personal  property  every- 
where, upon  the  principle  that  mova- 
bles have  no  situs,  or,  rather,  that  they 
accompany  the  person  everywhere. 
As  to  immovable  property  the  law  ret 
sitce  will  prevail.    (4)  Where  there  is 

301 


§  222 


THE   DOMESTIC   RELATIONS. 


[part  II. 


no  change  of  domicile,  tlie  same  rule 
will  apply  to  future  acquisitions  as  to 
present  property.  (6)  But  where  there 
is  a  change  of  domicile,  tlie  law  of  the 
actual  domicile,  and  not  of  the  matri- 
monial domicile,  will  govern  as  to  all 
future  acquisitions  of  movable  prop- 
erty ;  and,  as  to  all  immovable  prop- 
erty, the  law  rei  sitae.  Story  Confl. 
Laws,  §§  184-187.  And  see  Besse  v. 
Pellochoux,  73  111.  285. 

He  further  adds  that  although  in  a 
general  sense  the  law  of  the  matri- 
monial domicile  is  to  govern  in  relation 
to  the  incidents  and  effects  of  marriage, 
yet  this  doctrine  must  be  received  with 
many  qualifications  and  exceptions,  in- 
asmuch as  no  nation  will  recognize 
such  incidents  and  effects  when  incom- 

302 


patible  with  its  own  policy  or  injurious 
to  its  own  interests.  So,  too,  perplex- 
ing questions  will  sometimes  arise  in 
determining  upon  the  real  matrimonial 
domicile  of  parties  who  marry  /?i  trans- 
itu, during  a  temporary  residence 
abroad,  or  on  a  journey  made  for 
tliat  purpose  with  the  intention  of  re- 
turning. But  the  true  principle  in 
such  cases  is  to  consider  as  the  real 
matrimonial  domicile  the  place  where, 
at  the  time  of  marriage,  the  parties  in- 
tended to  fix  their  abode,  and  not  the 
place  where  the  ceremony  was  in  fact 
performed.  Story  Confl.  Laws,  §§  189- 
199,  and  cases  cited.  See  also  1  Burge 
Col.  &  For.  Laws,  244-639;  Wharton 
Confl.  Laws,  §§  118-121,  1G6,  187-202  ; 
and  Schoul.  Hus.  &  Wife,  §  570,  note. 


PART  HI. 

PARENT  AND  CHILD. 
CHAPTER   I. 

OF  LEGITIMATE   CHILDEEN   IN   GENEEAL. 

§  223.  Parent  and  Child  in  General ;  Children,  Legitimate  and 
Illegitimate.  — The  second  of  the  domestic  relations  is  that  of 
Parent  and  Child  ;  a  relation  which  results  from  marriage,  and 
is,  as  Blackstone  terms  it,  the  most  universal  relation  in 
nature.^  Both  natural  and  politic  law,  morality,  and  the 
precepts  of  revealed  religion  alike,  demand  the  preservation 
of  this  relation  in  its  full  strength  and  purity.  In  the  first 
period  of  their  existence,  children  are  a  common  object  of 
affection  to  the  parents,  and  draw  closer  the  ties  of  their 
mutual  affection ,  then  comes  the  education  of  the  child,  in 
which  the  parents  have  a  common  care,  which  further  identi- 
fies their  sympathies  and  objects  ;  the  brothers  and  sisters  of 
the  child,  when  they  come,  bring  with  them  new  bonds  of 
affection,  new  sympathies,  new  common  objects  ;  and  the 
habits  of  a  family  take  the  place  of  the  wishes  of  an  indi- 
vidual. Thus  do  children  give  rise  to  affections  which  still 
further  tend  to  bind  together  the  community  by  links  of 
iron.2 

Children  are  divided  into  two  classes,  legitimate  and  ille- 
gitimate.    The  law  prescribes  different  rights  and  duties  for 

1  1  BI.  Com.  447. 

2  1  Whewell  Elements  of  Morality,  100;  2  Kent  Com.  189. 

303 


§  225  THE   DOMESTIC   RELATIONS.  [PART  III. 

these  classes.^  It  becomes  proper,  then,  to  consider  them  in 
order.  Firsts  then,  as  to  legitimate  children,  to  which  topic 
alone  the  relation  of  parent  and  child  in  strictness  applies  ; 
this  will  occupy  several  chapters. 

§  224.  Legitimate  Children  in  General.  —  A  legitimate  child 
is  one  who  is  born  in  lawful  wedlock,  or  is  properly  brought 
within  the  influence  of  a  valid  marriage  by  reason  of  the 
time  of  birth.  Legitimacy,  as  the  word  imports,  will  requiie 
that  the  child  be  born  in  a  manner  approved  of  by  the  Inw. 
If  he  is  begotten  during  marriage  and  born  afterwards,  it  is 
enough.^ 

§  225.  Presumption  of  Legitimacy.  —  The  maxim  of  the  civil 
law  is  Pater  est  quern  nuptice  demonstrant ;  a  rule  frequently'' 
cited  with  approval  by  common-law  authorities,  though,  as 
we  shall  soon  see,  differently  applied  in  some  respects.-^  A 
distinguished  Scotch  jurist  pronounces  this  "  a  plain  and 
sensible  maxim,  which  is  tlie  corner-stone,  the  very  founda- 
tion on  which  rests  the  whole  fabric  of  human  society."  * 
BouUenois,  a  civil-law  writer,  likewise  commends  it  as  "  a 
maxim  recognized  by  all  nations,  which  is  the  peace  and 
tranquillity  of  States  and  families."  ^  This  maxim  implies 
that  it  is  always  sufficient  for  a  child  to  show  that  he  is  l)orn 
during  the  marriage.  The  law  draws  from  this  circumstance 
the  necessary  presumption  that  he  is  legitimate.  Every  child 
born  in  wedlock  is  presumed  to  be  legitimate,  and  the  child's 
paternity  is  provable  by  reputation. 

Strong,  however,  as  this  presumption  may  be,  it  is  not 
conclusive  at  law.  For  there  may  be  other  circumstances  ;  ^ 
such  as  long-continued  separation  of  the  parents ;  the  impo- 
tence of  the  father ;  also,  if  the  offspring  be  posthumous,  the 
length  of  period  which  has  elapsed  since  the  father's  death. 
Such  circumstances  miglit  render  it  physically  and  morally 

1  1  Bl.  Com.  447.  Child,   1,   2,  and  authoritios  cited  ;   1 

2  1  Bl.  Com.  447  ;  Fraser  Parent  &    BurgeCol.  &  For.  Laws,  59. 

Child,  1 :  1  Burge  Col.  &  For.  Laws,  *  Ld.  Pres.  Blair,  in  Routledge  v. 
.59.  Carruthers,  19  May,  1812,  cited  by  Fra- 

3  1   Bl.  Com.  ib. ;  Stair  IIL  3,  42  ;  2     ser,  !t<ipra. 

Kent  Com.  212,  n. ;  Fraser  Parent  &         •"•  Bonllenois  Traitc  des  Status,  tome 

1,  p.  G2,  also  cited  by  Fraser,  supra. 

304 


CHAP.  I.]       LEGITIMATE   CHILDREN   IN   GENERAL.  §  225 

impossible  that  the  child  was  born  and  begotten  in  lawful 
wedlock.  The  civil  law,  therefore,  admitted  four  exceptions 
to  the  general  maxim  :  first,  the  absolute  and  permanent  im- 
potence of  the  husband  ;  second,  his  accidental  impotence  or 
bodily  disability  ;  third,  his  absence  from  his  wife  during  that 
period  of  time  in  which,  to  have  been  the  father  of  the 
child,  he  must  have  had  sexual  intercourse  with  her;  fourth, 
the  intervention  of  sickness,  vel  alia  causa}  These  conclud- 
ing words  admit  the  classification  to  be  imperfect.  The  com- 
mon-law rule,  which  subsisted  from  the  time  of  the  Year 
Books  down  to  the  early  part  of  the  last  centur}^,  declared 
the  issue  of  everj'^  married  woman  to  be  legitimate,  except  in 
the  two  special  cases  of  the  impotency  of  the  husband  and  his 
absence  from  tlie  realm.^  But  in  Pendrell  v.  Peiidrell  the 
absurd  doctrine  of  making  legitimacy  rest  conclusively  upon 
the  fact  of  the  husband  being  infra  q^mtuor  niaria  was  ex- 
plotled.'^  Some  Scotch  jurists  resolve  the  grounds  upon 
which  the  presumption  of  legitimacy  may  be  overthrown 
into  two  :  first,  that  the  husband  could  not  have  had  sexual 
intercourse  with  his  wife  by  reason  of  his  impotency  ;  and 
second,  that,  having  the  power,  he  had  in  fact  no  sexual  inter- 
course with  her  at  the  time  of  the  conception.^  This  seems 
to  mean,  first,  that  the  husband  physically  could  not  ;  second, 
that  he  actually  did  not ;  but  does  not  the  second  exception 
swallow  the  first  ?  Perhaps  the  safer  course  is  to  aban- 
don all  attempts  to  classify  ;  and  to  hold,  with  Chancellor 
Kent,  that  the  question  of  the  legitimacy  or  illegitimacy  of 
the  child  of  a  married  woman  is  one  of  fact,  resting  o.n  de- 
cided proof  as  to  the  non-access  of  the  husband,  and  that 
these  facts  must  generally  be  left  to  a  jury  for  determina- 
tion .^ 

From  the  peculiarities  attending  the  case  of  access  or  non- 

1  Dig.  lib.  1,  tit.  6,  1.  6 ;  1  Burge  Col.  *  Frager  Parent  &  Child,  4. 

&  For.  Laws,  60.  5  2  Kent  Com.  211  ;  3  P.  Wms.  275, 

2  2  Kent  Com,  210  ;  Co.  Litt  244  a  ;  276  ;  Harg.  n.  193  to  Co.  Litt.  lib.  2  ; 
1  Eoll.  Abr.  358.  Eex  v.  Luffe,  8  East,  193.     And  to  the 

3  Stra.  Eep.  925;  2  Kent  Com.  211,  same   effect,   see   Blackburn   v.  Craw- 
and  cases  cited ;  Shelley  v. (1806),  fords,  3  Wall.  175. 

13  Ves.  56. 

20  305 


§  225  THE   DOMESTIC   RELATIONS.  [PART   III. 

access,  legitimacy  or  illegitimacy,  great  indulgence  is  to  be 
shown  by  the  courts.  Said  Lord  Ersldne  :  "  The  law  of 
England  has  been  more  scrupulous  upon  the  subject  of 
legitimacy  than  any  other,  to  the  extent  even  of  disturbing 
the  rules  of  reason,"  ^  Still  later  was  it  asserted  in  English 
chancery  that  the  ancient  policy  of  the  law  remained  unal- 
tered ;  and  that  a  child  born  of  a  married  woman  was  to  be 
presumed  to  be  the  child  of  the  husband,  unless  there  was 
evidence,  beyond  all  doubt,  that  the  husband  could  not  be 
the  father.2  And  it  is  at  this  day  admitted  that  the  pre- 
sumption thus  established  by  law  is  not  to  be  rebutted  by 
circumstances  which  only  create  doubt  and  suspicion  ;  but 
that  the  evidence  against  it  ought  to  be  strong,  distinct,  satis- 
factory, and  conclusive.^ 

So  far,  indeed,  is  legitimacy  favored  at  law,  that  neither 
husband  nor  wife  can  be  a  witness  to  prove  access  or  non- 
access.  This  is  clearly  established  in  England  ;  "*  and  it  is 
understood  to  be  the  law  likewise  in  this  country,  though  the 
decided  cases  seem  to  turn  upon  the  admissibility  of  the  wife's 
testimony.^  Such  evidence  is  treated  as  contra  bonos  mores. 
Yet  the  wife  is  an  admissible  witness  to  prove  her  own  adul- 
tery, and  in  questions  of  pedigree ;  and  husband  and  wife 
ma}'^  prove  facts,  such  as  marriage  and  date  of  the  child's 
birth  ;  these  may  be  conclusive  as  to  illegitimacy.^  Much 
testimony,  extremely  delicate,  is  also  taken  in  bastardy  and 
divorce  proceedings.    When,  therefore,  the  courts  shut  their 

1  Shelley  v. ,  13  Ves.  56.  v.  Page,  29  Penn.  St.  420.    Tlie  father's 

2  Head  v.  Head,  1  Sim.  &  Stu.  150  declarations  as  to  a  son's  illegitimacy 
(182-3)  ;  Banbury  Peerage  Case,  ib.  153  ;  are  competent.  Barnum  v.  Barnum,  42 
Pendrell  v.  Pendrell,  2  Stra.  925.  Md.  251.    A  mother  may   testify  that 

3  Hargrave  v.  Hargrave,  9  Beav.  she  was  always  true  to  the  reputed 
552 ;  Archley  v.  Sprigg,  33  L.  J.  Ch.  father,  her  husband,  and  that  no  other 
345  ;  Plowes  r.  Bossey,  8  Jur.  n.  s.  352;  man  could  have  been  the  father  of  the 
10  W.  R.  332.  child.     Warlick   v.   White,   76   N.    C. 

*  Rex  V.  Inhabitants  of  Sourton,  5  175.    Sem/j/e,  such  mother's  truthfulness 

Ad.  &  El.  188 ;  Patchett  v.  Holgate,  3  may  be  impeached,  but  not  her  general 

E.  L.  &  Eq.  100  ;  15  Jur.  3u8 ;  In  re  character  for  chastity.     Jb. 
Rideout's  Trusts,  L.  R.  10  Eq.  41.  6  See  1  Greenl.  Evid.  §§  343,344; 

5  2  Stark.  Evid.   §  404 ;    1   Greenl.  Caujolle  v.  Ferric,  23  N.  Y.  90.     And 

Evid.  §  344;  Phillips  v.  Allen,  2  Allen,  see  Sale  v.  Crutchfield,  8  Bush,  636; 

453  ;  People  v.  Overseers,  15  Barb.  286  ;  Dean  v.  State,  29  Ind.  483. 
Parker  v.  Way,  15  N.  H.  45;  Dennison 

306 


CHAP.  I.]       LEGITIMATE   CHILDREN   IN   GENERAL.  §  225 

eyes  so  tightly  against  this  proof  of  access  or  non-access,  per- 
haps it  is  not  because  they  are  shocked,  but  lest  they  should 
see  illegitimacy  established. 

To  carry  the  presumption  of  legitimacy  so  far  as  to  dis- 
turb the  rules  of  reason  is  unjust  ;  for  no  man  should  be 
saddled  with  the  obligations  of  children  which  clearly  do  not 
belong  to  him.  And  the  rule  of  evidence  in  the  English 
courts  has  been  severely  and  justly  criticised,  not  without 
some  good  results.^  The  decision  of  the  House  of  Lords  in 
the  celebrated  Banbury  Peerage  case,  proceeded  upon  the 
reasonable  assumption  that  moral  as  well  as  physical  impossi- 
bilities may  affect  the  rule  of  legitimacy.  Here  husband  and 
wife  occupied  the  same  house  at  the  very  time  the  child  must 
have  been  begotten,  and  no  case  of  impotency  was  made  out, 
and  yet  that  child  was  held  not  to  be  the  child  of  the  husband  ; 
for  the  testimony  as  to  a  moral  impossibility  was  sufficiently 
strong  notwithstanding.^  This  case  was  confirmed  by  another, 
where  husband  and  wife  had  voluntarily  separated,  but  the 
husband  resided  at  a  distance  of  only  fifteen  miles,  and  some- 
times visited  his  wife  ;  and  the  wife  was  delivered  of  a  child, 
which  was  pronounced  a  bastard,  from  evidence  of  the  con- 
duct of  the  wife  and  her  paramour.  Here  it  was  said,  "  The 
case,  therefore,  comes  back  to  the  question  of  fact."  ^  Impo- 
tence^ of  the  husband,  and  his  absence  from  the  realm,  sug- 
gest then  but  two  classes  of  cases,  and  those  not  the  only 
ones,  where  children  may  now  be  pronounced  bastards.^ 

-  2  Kent  Com.  211,  n. ;  Fraser  552.  "  I  apprehend,"  said  Lord  Lang- 
Parent  &  Child,  7.  dale,  "  that   evidence   of  every   kind, 

-  1  Sim.  &  Stu.  153.  See  Nicolas  on  direct  or  presumptive,  may  be  adduced, 
Adulterine  Bastardy,  181,  a  volume  for  the  purpose  of  showing  the  absence 
written  to  show  that  tliis  case  overturns  of  sexual  intercourse  which,  in  cases 
the  old  law  of  England.  where  there  has  been  some  society,  in- 

5  Morris  v.  Davies,  5  CI.  &  Fin.  463.  tercourse,    or  access,  has   been   called 

And  see  Barony  of  Saj^e  &  Sele,  1  CI.  non-generating  access.    We  have,  tliere- 

&  Fin.  N.  s.  507 ;  Sibbett  r.  Ainsley,  3  fore,  to  attend  to  the  conduct  and  the 

L.  T.  N.  s.  583,  Q.  B.  ;  Fraser  Parent  feelings,  as  evidenced  by  the  conduct 

&  Child,  8  ;  King  v.  Luffe,  8  East,  193 ;  of  the  parties  towards  each  otlier  and 

also,  Hitchins  r.  Eardley,  L.  R.  2  P.  &  the  offspring,  and  even  to  the  declara- 

D.  248,  as  to  admitting  declarations  of  tions   accompan^dng    acts,   which    are 

the  person    whose    legitimacy    is    at  properly  evidence.    Such  circumstances 

issue.  are  of  no  avail  against  proper  evidence 

*  Hargrave    v.   Hargrave,   9 'Beav.  of    generating   access;  but  they   may 

307 


226 


THE  DOMESTIC   RELATIONS. 


[part  III. 


Ill  this  country,  cases  have  not  unfrequently  arisen  which 
involve  the  legitimacy  of  offspring ;  and  the  more  reasonable 
doctrine  favors  legitimacy  to  about  the  same  extent  as  the 
later  English  decisions.^  The  presumption  of  legitimacy  is 
strongly  carried,  as  the  cases  below  cited  indicate  ;  though 
not  so  far  as  to  exclude  proof  of  non-access  of  the  husband, 
or  such  other  fact  as  might  rebut  this  presumption,  and  show 
that  the  child  of  a  married  woman  was  in  reality  a  bastard.^ 

§  226.  Legitimation  of  Illicit  Offspring  by  Subsequent  Mar- 
riage. —  In  respect  of  the  legitimation  of  offspring  by  the  sub- 
sequent marriage  of  their  parents,  the  civil  and  common  law 
systems  widely  differ.  By  the  civil  and  canon  laws,  two 
persons  who  had  a  child  as  the  fruit  of  their  illicit  intercourse 
might  afterwards  marry,  and  thus  place  their  child  to  all  in- 


have  weight,  when  the  effect  of  that 
evidence  is  doubtful.  If  the  weiglit  is 
not  such  as  to  convince  tiie  minds  of 
tliose  who  have  to  determine  the  mat- 
ter, the  effect  may  only  tend  to  shake, 
without  removing,  the  presumption  of 
legitimacy,  which  in  sucii  a  case  must 
prevail." 

1  Patterson  v.  Gaines,  6  How.  (U.  S.) 
582;  2  Kent  Com.  211,  and  cases  cited; 
Hemmenway  v.  Towner,  1  Allen,  209; 
Van  Aernam  v.  Van  Aernam,  1  Barb. 
Ch.  375  ;  Wright  v.  Hicks,  15  Geo.  160. 

2  See  Van  Aernam  v.  Van  Aernam, 
1  Barb.  Ch.  375 ;  Kleinert  v.  Ehlers,  38 
Penn.  St.  439  ;  Phillips  v.  Allen,  2  Al- 
len, 453 ;  Hemmenway  v.  Towner,  1 
Allen,  209;  State  v.  Herman,  13  Ire. 
602 ;  Tate  v.  Pene,  19  Martin,  548 ; 
Cannon  v.  Cannon,  7  Humph.  410 ; 
State  V.  Shumpert,  1  S.  C.  n.  s.  85; 
Strode  v.  Magowan,  2  Bush,  C21 ;  Black- 
burn V.  Crawfords,  3  Wall.  175.  Col- 
lateral proof  of  legitimacy  is  not  to  be 
favored.  See  Kearney  v.  Denn,  15 
Wall.  51.  But  under  suitable  circum- 
stances the  grant  of  letters  of  admin- 
istration may  be  conclusive  in  other 
courts.  CaujoUe  v.  Ferric',  13  Wall.  465. 

Formerly,  in  portions  of  the  United 
States,  slave  marriages  were  deemed 
unlawful,   and    the    offspring  illegiti- 

308 


mate.  Timrains  v.  Lacy,  30  Tex.  115. 
But  slavery  no  longer  exists,  and  the 
tendency  of  our  legislation  is  now  to 
uphold  as  flir  as  possible  former  mar- 
riages of  colored  persons,  and  the  legiti- 
macy of  their  offspring,  cohabitation 
continuing.  See  White  v.  Ross,  40  Geo. 
339;  Allen  v.  Allen,  8  Bush,  490; 
Clements  v.  Crawford,  42  Tex.  601 ; 
Daniel  v.  Sams,  17  Fla.  487  ;  supra,  §  17 
To  impugn  a  child's  paternity, 
reputation  of  the  mother  for  unchas- 
tity  is  admissible,  if  at  all,  only  as  to 
uncliastity  prior  to  connection  with  the 
reputed  father.  Morris  v.  Swaney,  7 
Heisk.  591 ;  Warlick  v.  White,  76  N.  C. 
175. 

If  the  son  was  colored  and  the  mother 
an  Indian,  the  color  will  be  presumed 
to  have  been  derived  from  the  mother 
rather  than  disturb  the  presumption 
of  legitimacy.  Illinois  Land  Co.  v. 
Bonner,  75  111.  315.  Where  parents 
and  other  members  of  the  family  have 
long  and  consistently  treated  a  child  as 
legitimate,  this  affords  strong  presump- 
tion of  legitimacy  in  any  case.  Ih.  ; 
Gaines  v.  Mining  Co.,  32  N.  J.  Eq.  86. 
But  not  proof  indisputable.  Bussom 
V.  Forsyth,  32  N.  J.  Eq.  277. 

And  as  to  proof  of  marriage,  see 
also  Schoul.  IIus.  &  Wife,  §§  38,  39. 


CHAP.  I.]      LEGITIMATE   CHILDKEN   IN   GENERAL.  §  226 

tents  and  purposes  on  the  same  footing  as  their  subsequent 
offspring,  born  in  lawful  wedlock.^  But  the  common  law, 
though  not  so  strict  as  to  require  that  the  child  should  be 
begotten  of  the  marriage,  rendered  it  indispensable  that  the 
birth  should  be  after  the  ceremony .2  Let  us  notice  this  point 
of  difference  at  some  length. 

It  appears  that  the  law  of  legitimation  per  suhsequens  matri- 
monium  is  of  Roman  origin  ;  introduced  and  promulgated  by 
the  first  Christian  Emperor,  Constantino,  as  history  alleges, 
at  the  instigation  of  the  clergy.  This  was  an  innovation  upon 
the  earlier  Roman  system  ;  and  the  object  of  its  introduction 
was  to  put  down  that  matrimonial  concubinage  which  had 
become  so  universal  in  the  empire.^  Justinian  afterwards 
made  this  law  perpetual.*  Its  first  appearance  in  the  canon 
law  is  found  in  two  rescripts  of  Pope  Alexander  III.,  pre- 
served in  the  Decretals  of  Gregory,  and  issued  in  1180  and 
1172.5  These  extended  the  benefits  of  the  marriage  to  the 
offspring  of  carnal  love,  and  not  merely  to  the  issue  of  sys- 
tematic concubinage.  This  law  of  legitimation  was  intro- 
duced into  Scotland  within  the  range  of  authentic  history.^ 
It  is  also  admitted,  with  different  modifications,  into  the  codes 
of  France,  Spain,  Germany,  and  most  other  countries  in 
Europe.'' 

The  principle  to  which  the  law  of  legitimation  per  suhse- 
quens matrimonium  is  to  be  referred  has  been  a  subject  of 
controversy.  The  canonists  based  the  law  not  on  general 
views  of  expediency  and  justice,  but  upon  a  fiction  which 
they  adopted  in  order  to  reconcile  the  new  law  with  estab- 
lished rules  ;  for,  assuming  that,  as  a  general  rule,  children 

1  2  Kent  Com.  208 ;  1  Burge  Col.  &  ^  "  Licita  consuetucio  semimatrimo- 
For.  Laws,  92.  nium."     Cod.  lib.  6,  tit.  57. 

2  1  Bl.  Com.  454.  If  the  child  be  *  Taylor's  Civil  Law,  272 ;  Eraser 
born  after  the  ceremon}',  even  though  Parent  &  Child,  32  ;  1  Burge  Col.  & 
it  be  but  a  few  weeks  later,  the  pre-  For.  Laws,  92,  93. 

sumption  of  paternity  against  the  bus-         ^  Deer.  IV.  17,  1 ;  IV.  17,  6,  cited 

band    is    almost   irresistible,   and  the  in  Eraser  Parent  &  Cbild,  33.     "  Tanta 

burden  is  on  him  to  show  affirmatively  est  enim  vis  sacramenti  (matrimonii) 

to  the   contrary,  in  order  to  establish  ut  qui  antea  sunt  geniti  post  contractum 

the  cliild's  status  as  illegitimate.    Gard-  matrimonium  habeantur  legitimi." 
ner  v.  Gardner,  2  App.  Cas.  723.     Cf.  6  Eraser  Parent  &  Child,  32,  33. 

In  re  Corlass,  1  Ch.  D.  460.  ^  1  Burge  Col.  &  Eor.  Laws,  101. 

309 


§  227  THE  DOMESTIC   RELATIONS.  [PART  HI. 

are  not  legitimate  unless  born  in  lawful  wedlock,  they  de- 
clared that,  by  a  fiction  of  law,  the  parents  were  married  when 
the  child  was  born.  Such  reasoning,  by  no  means  uncommon 
in  days  when  the  wise  saw  more  clearly  what  was  right,  than 
why  it  was  so,  has  not  stood  the  test  of  modern  logic ;  and 
the  Scotch  courts  have  placed  the  rule  once  more  where  its 
imperial  founders  left  it ;  namely,  on  the  ground  of  general 
policy  and  justice.  "  Legitimation  is  thought  to  be  recom- 
mended by  these  considerations  of  equity  and  justice,  that  it 
tends  to  encourage  what  is  at  first  irregular  and  injurious  to 
society,  into  the  honorable  relation  of  lawful  matrimony  ;  and 
that  it  prevents  those  unseemly  disorders  in  families  which 
are  produced  where  the  elder-born  children  of  the  same 
parents  are  left  under  the  stain  of  bastardy,  and  the  younger 
enjoy  the  status  of  legitimacy.^  " 

This  doctrine  of  the  civil  law  has  found  great  favor  in  the 
United  States.  It  has  prevailed  for  many  years  in  the  States 
of  Vermont,  Maryland,  Virginia,  Georgia,  Alabama,  Missis- 
sippi, Louisiana,  Kentucky,  Missouri,  Indiana,  and  Ohio.^ 
So  in  Massachusetts,  bastards  are  to  be  considered  legitimate 
after  the  intermarriage  of  their  parents  and  recognition  by  the 
father.^  And  similar  statutes  are  to  be  found  in  Maine,  New 
Hampshire,  Pennsylvania,  Vermont,  Indiana,  and  elsewhere.'* 

§  227.  Legitimation  by  Subsequent  Marriage  not  favored  in 
England.  —  On  the   Other  hand,   the    English    law   has   very 

1  Fraser  Parent  &  Child,  35;  Munro  Adams,  36  Geo.  236;  Morgan  v.  Perry, 
V.  Munro,  1  Rob.  H.  L.  Scotch  App.  51  N.  H.  559 ;  Brown  v.  Belmarde,  4 
492.  Kans.  41.     In  some  States  still  another 

2  Griffith's  Law  Reg.  passim  ;  1  mode  of  legitimation,  for  inheritance, 
Surge  Col.  &  For.  Laws,  101.  This  if  not  for  all  other  purposes,  is  per- 
provision  protects  tlie  offspring  of  an  mitted  by  law  as  to  such  offspring ; 
adulterous  connection  as  well  as  that  of  namely,  by  the  father's  formal  deelara- 
parents  who  were  free  to  contract  mar-  tion,  or  that  of  both  parents,  properly 
riage  when  the  children  were  born,  attested,  which  is  filed  in  court  and  re- 
Hawbecker  v.  Hawbecker,  43  Md.  516.  corded.     This  might  be  called  legitima- 

3  Mass.  Gen.  Sts.  1860,  c.  91.  tion  by  public  or  judicial  record  after 
*  Maine  Laws,  1852,  c.  266  ;  Penn.     intermarriage  of  parents.     See  Lingen 

Laws,  1857,   May  14  ;  Vermont  R.  S.  v.  Lingen,  45  Ala.  410,  414  ;  Pina  v. 

1863,  c.  56  ;  Ind.  R.  S.  1862,  c.46.    And  Peck,  31  Cal.  359;  Talbot  v.  Hunt,  28 

see  Graham  v.   Bennett,   2   Cal.    503  ;  La.  Ann.  3.     Recognition  of  a  less  for- 

Starr   v.  Peck,    1    Hill    (N.   Y.),   270;  mal  character  suffices  for  purposes  of 

Sleigh  V.  Strider,  5  Call,  439  ;  Dannelli  inheritance  in  Iowa.     Crane  v   Crane, 

V.  Dannelli,   4   Bush,   51 ;    Adams    v.  31  Iowa,  296. 

310 


CHAP.  I.]       LEGITIMATE   CHILDREN   IN    GENERAL.  §  227 

strongly  opposed  the  whole  doctrine  of  legitimation  per  sub- 
sequens  matrimonium.  Even  so  far  back  as  the  reign  of 
Henry  III.  is  found  a  memorable  instance  where  the  peers 
refused  to  change  the  law  in  this  respect,  when  urged  to  do 
so  by  the  English  bishops  ;  declaring  with  one  voice,  quod 
nolunt  leges  Anglice  mutare,  quce  hue  usque  tisitatce  sunt  et  ap- 
prohatce}  Jealousy  of  canonical  influence  may  partially  ac- 
count for  this  conduct,  if  not  prejudice  against  the  civil  law 
generally.  Certain  it  is  that  most  English  jurists  have  ever 
since  stubbornly  maintained  the  superiority  of  their  own 
maxims,  which  place  the  immutability  of  the  mairiage  rela- 
tion above  all  the  tender  promptings  of  humanity  towards 
innocent  sufferers.  Even  Blackstone  vigorously  assails  the 
civil-law  doctrine,  urging  against  it  several  rather  artificial 
objections,  in  the  apparent  belief  that  legal  consistency  is 
better  than  natural  justice.^  But  on  the  other  hand,  Selden 
mentions  that  the  children  of  John  of  Gaunt,  Duke  of  Lan- 
caster, were  legitimated  by  an  act  of  Parliament,  in  the 
reign  of  Richard  II.,  founded  on  some  obscure  common-law 
custom.^ 

Upon  such  principles  it  has  been  decided  by  the  House  of 
Lords,  that  where  a  marriage  is  in  its  inception  unlawful, 
being  at  a  time  when  the  woman's  first  husband  must  have 
been  alive,  children  born  even  after  the  time  when  it  was 
presumed  that  the  first  husband  had  died,  must  be  pro- 
nounced illegitimate  ;  the  mere  continuance  of  the  cohabita- 
tion after  that  event  being  insufficient,  without  celebration,  to 
change  the  character  of  the  connection.*  Nor  will  an  abso- 
lute presumption  of  law  be  raised  as  to  the  continuance  of  life 
to  support  such  legitimacy  ;  for  in  every  instance  the  circum- 
stances of  the  case  must  be  considered.^  And  so  strict  is  the 
rule,  that  where  a  person,  born  a  bastard,  becomes,  by  the 
subsequent  marriage  of  his  parents,  legitimate  according  to 

'  Stat,   of  Merton,   20  Hen.  IIL  c.         *  Lapsley  v.  Grierson  (1848),  1  CI. 

9;  2  Kent  Com.  209 ;  1  Bl.  Com.  456.  &  Fin.  n.  s.  498;  Cunningham  v.  Cun- 

2  1  Bl.  Com.  454,  455.  ninghara,  2  Dow,  482. 

3  Selden  on  Fleta,  c.  9,  §  2.     And         *  Lapsley  v.  Grierson,  ib.,  explain- 
see  Barrington,  p.   38;  2  Kent  Com.  ing  Rex  v.  Twyning,  2B.  &  A.  386. 
209. 

311 


§  229  THE   DOMESTIC    RELATIONS.  [PART   III. 

the  laws  of  the  country  in  which  he  was  born,  he  is  still 
a  bastard,  so  far  as  regards  the  inheritance  of  lands  in 
England. 1 

§  227  a.  Legitimacy  of  Offspring  born  after  Divorce.  —  As  to 
the  status  of  children  born  after  divorce,  partial  or  complete, 
little  can  be  stated  from  the  books  ;  for  such  divorces  hardly- 
existed  at  the  common  law.^  They  are  probably  illegitimate 
prima  facie,  if  born  of  the  divorced  mother  within  an  unrea- 
sonable time  after  separation.^ 

§  228.  Legitimacy  in  Marriages  Null  but  Bona  Fide  contracted. 
—  The  issue  of  marriages  rendered  null  and  void  are  on  gen- 
eral principles  necessarily  illegitimate.  Opposed  to  this  is 
the  civil-law  doctrine  of  putative  marriages,  first  introduced 
into  the  canon  law  by  Pope  Innocent  III.  ;  which  upholds  tlie 
legitimacy  of  the  children  in  cases  where  the  parties,  or  either 
of  them,  bona  fide  believing  that  they  could  marry,  had  en- 
tered into  the  contract,  while  there  was  some  unknown  im- 
pediment existing.*  This  subject  is  regulated  by  statute  to  a 
great  extent  in  this  country,  and  here  again  our  system  con- 
forms to  the  civil  rather  than  the  common  law.^ 

§  229.  Legitimation  by  the  State  or  Sovereign.  —  Legitima- 
tion by  rescript  of  the  Emperor  appears  in  the  Institutes  of 
Justinian.^  Still  later  did  the  Pope,  assume  the  power  to 
grant  the  status  of  legitimacy  ;  and  in  many  of  the  canonical 
dispensations  occur  clauses  of  this  sort.''     The  effect  of  these 

1  Doe  d.  Birtwhistle  v.  Vardill,  6  Montgomery  v.  Montgomery.  3  Barb. 
Bing.  N.  C.  385 ;  7  CI.  &  Fin.  895.     And     Ch.  132. 

see  c.  6,  post.  ^  St.  George  v.  St.  Margaret,  1  Salk. 

The   only   exception  permitted    by  123  ;  2  Bish.  Mar.  &  Div.  §  740. 
the  common  law  under  this  general  liead  *  Fraser  Parent  &  Child,  22  et  seq. ; 

was,  that  where  the  child  whose  parents  1   Burge   Col.  &  For.   Laws,  96.     See 

subsequently  married  entcretl  into  pos-  Lapsley  u.  Grierson,  1   CI.  &  Fin.  N.  s. 

session  of  his  father's  lands  after  his  498,  cited  supra. 

fatiier's    death,   and    kept    possession         ^  See  supra,  §  22.     And  see  Graham 

until  his  own  death,  so  that  they  de-  v.  Bennett,  2  Cal.  503.     Yet  there  is  a 

scended  to  his  own  issue,  no  disturb-  case,  that  of  Sir  Kalph  Sadlier,  where 

ance  of  title  was  permitted  on  the  plea  Parliament  gave   relief.     See    Nicolas 

of  such  child's  illegitimacy.     Bussom  Adult.  Bast.   61-63 ;  Fraser  Parent  & 

V.  Forsyth,  32  N.  J.  Eq.  277.  Child,  24  ;  Burnett's  History,  book   1, 

2  See  Husband  &  Wife,  supra,  §  22;  c.  19  ;  Riddell  Peer  &  Cons.  Law,  421. 
2  Bish.  Mar.  &  Div.  5th  ed.  §  559 ;         6  Nov.  74,  c.  1,  2 ;  and  89,  c.  9. 


7  See  Fraser  Parent  &  Child,  43. 


312 


CHAP.  I.]       LEGITIMATE   CHILDREN   IN    GENERAL.  §  230 

high-sounding  clauses  is  now  of  little  consequence.^  The 
English  Parliament,  by  virtue  of  its  transcendent  power,  may 
render  a  bastard  legitimate  and  capable  of  inheriting.^  This 
same  power  has  been  claimed  for  the  legislatures  of  the 
United  States.^  And  except  so  far  as  legislative  acts  may 
come  under  constitutional  restraints  against  impairing  the 
obligation  of  contracts,  there  seems  no  reason  why  they  should 
not  be  uniformly  upheld. 

§  230.  Domicile  of  Children.  —  The  domicile  of  a  child's 
origin  is  to  be  determined  by  the  domicile  of  his  parents  ;  or, 
to  speak  more  strictl}^  of  his  father.  We  speak  at  this  time 
only  of  legitimate  children.  The  domicile  of  origin  remains 
until  another  is  lawfully  acquired.  And  since  minors  are  not 
sui  juris,  they  may  not  change  their  domicile  during  their 
minority,  though  they  may  when  of  full  age ;  hence  they 
retain  during  infancy  the  domicile  of  their  parents  ;  if  the 
parents  change  their  domicile,  that  of  the  infant  children  fol- 
lows it ;  and  if  the  father  dies,  his  last  domicile  is  that  of  the 
infant  children.*  The  surviving  mother  may  change  the 
domicile  of  her  minor  children,  provided  she  do  so  without 
fraudulent  views  to  the  succession  of  their  estate;  though  it 
would  appear  that  she  cannot  change  it  after  her  remarriage.^ 
In  general,  dwelling  at  a  certain  place  is  prima  facie  proof 

1  See  Fraser  Parent  &  Cliild,  43.  Tuttle,  30  Ala.  013.     Tlie  widow's  re- 

2  1  Bl.  Com.  459.  And  see  Stat.  6  moval  from  tlie  liomestead  must  not 
Will.  IV.  c.  22.  jirejudice  the  children's  claim  thereto. 

3  Beall  i^  Beall,  8  Ga.  210 ;  VidaU.  Showers  v.  Pobinson,  43  Mich.  502. 
Commajere,  13  La.  Ann.  516.  It  will  After  the  mother  remarries,  the  domi- 
be  presumed  that  a  statute  of  this  kind  cile  of  the  child  ceases  to  change,  and 
confers  legitimacy  only  so  far  as  to  does  not  follow  that  of  the  step-father, 
give  the  capacity  to  inherit.  Grubb's  Ryall  i'.  Kennedy,  40  N.  Y.  Super.  347. 
Appeal,  58  Penn.  St.  55.  A  female  infant  cannot  change  her  own 

*  Story  Confl    Laws,  §§  45,  4fi,  and  domicile,  even  for  the  purpose  ol  annul- 

cases  cited  ;  1  Burge  Col.  &  For.  Laws,  ling  her  marriage.     Blumenthal  v.  Tan- 

33;  Abington  v.  North  Bridgewater,  23  nenholz,  31  N.  J.  Eq.  194. 
Pick.  170.  Taylor  v.  Jeter,  33  Ga.  195;  Following  the  usual  rule,  however, 

Daniel  v.  Hill,  52  Ala.  430;  Wharton  the  real   estate,  even  of  children,  de- 

Confl.  §  41.     But  see  Ishan  v.  Gibbons,  scends  according  to  the  law  of  situs, 

1  Bradf.  Sur.  70  ;  Somerville  v.  Somer-  and  the  personal  according  to  the  domi- 

ville,  5  Ves.  750.  cile.     See  this   applied  to  a  child  ille- 

^  Potinger  v.  Wightman,  3  Mer.  67 ;  gitimate   by  the   rule   of  the  situs  in 

1  Burge  Col.  &  For.  Laws,  39  ,  Brown  Miller  v.  Miller,  25  N.  Y.  Supr.  507. 
V.  Lynch,  2  Bradf.  Sur.  214  ;  Carlisle  v. 

313 


§  231  THE  DOMESTIC   RELATIONS.  [PART   III. 

that  a  person  is  domiciled  there.  This  question  of  domicile 
may  be  of  importance  in  determining  the  grant  of  administra- 
tion on  a  deceased  infant's  estate,  or,  if  the  child  be  alive,  of 
his  guardian's  appointment. 

Priyna  facie,  the  infant's  residence  or  domicile  is  that  of  his 
parent,  and  such  it  will  remain  during  minority,  in  spite  of 
his  temporary  absence  at  school  or  elsewhere.  Nor  can  he  of 
his  own  motion  acquire  a  new  domicile,  since  he  is  not  a  per- 
son sui  juris}  But  his  domicile  may  be  changed  by  his  father, 
if  he  has  one  ;  otherwise,  according  to  the  best  modern  author- 
ities, by  the  surviving  mother  until  her  remarriage;  and  per- 
haps even  by  the  guardian  himself,  although  not  a  relative, 
provided  he  act  in  good  faith.^  The  intent  of  the  parent  or 
guardian  in  such  cases  is  always  material  ;  but  this  intent  is 
to  be  determined  by  facts.  The  original  domicile  of  an  infant 
is  that  of  his  parents  at  the  time  of  his  birth. ^ 

§  231.  Conflict  of  Laws  as  to  Domicile  and  Legitimacy  — 
Some  writers  have  said  that,  when  the  laws  of  two  countiies 
are  in  conflict,  the  legitimacy  or  illegitimacy  of  children  is  to 
be  determined  by  the  domicile  of  origin.*  Others,  again,  that 
it  is  dependent  upon  the  lex  loci  of  marriage.^  Between  these 
writers  there  is  no  real  discrepancy  ;  for  in  every  such  case 
two  inquiries  are  involved,  the  one  whether  the  marriage  was 
in  itself  lawful,  the  other  whether  the  child  was  legitimate  by 
the  marriage.  Of  the  conflict  of  laws  regarding  marriage  we 
have  already  spoken.*^  That  involving  the  status  of  legiti- 
macy is  now  under  consideration. 

A  conflict  manifestly  arises  between  the  laws  of  domicile  of 
origin  and  subsequent  marriage,  and  the  laws  of  the  actual 
domicile  or  situs  of  property,  where  those  of  the  one  country 
admit  legitimation  per  subsequens  matrimoniiim,  and  those  of 
the  other  do  not.     As,  for  instance,  where  children  are  born, 

1  Macphers.  Inf.  579  ;  Brown  v.  ^  See  furtlier,  post,  Part  IV.  c.  5,  as 
Lynch,   2    Bradf.    214  ;    Story    Confl.     to  Guardian  &  Ward. 

Laws,  §  46.  ^  \   Burge   Col.   &   For.  Laws,  111  ; 

2  Potinger  v.  Wightman,  3  Mer.  67 ;     Fraser  Parent  &  Cliild,  45. 

2  Kent  Com.  227,  430;  1  Burge  Col.  &         ^  Story  Confl.  Laws,  §  105,  Whar- 

For.    Laws,    39;    Brown   v.   Lynch,   2     ton  Confl.  §§  35,  41. 

Bradf.  214.  •>  See  Husband  &  Wife,  p.  301,  supra. 

311 


CHAP.  I.]       LEGITIMATE   CHILDREN    IN    GENERAL.  §  231 

and  their  parents  afterwards  intermarry  in  certain  of  the 
United  States,  or  in  Scotland,  and  then  remove  with  their 
children  to  England ;  or  where  such  children  are  deemed  to 
have  acquired  property  rights  in  the  last-named  country.  On 
this  point  there  is  much  diversity  of  opinion.  And  the  Eng- 
lish courts  have  uniformly  maintained  their  distinctive  policy 
with  considerable  zeal  in  all  doubtful  cases.  Thus  particu- 
larly was  this  done  in  the  case  of  Birtwhlstle  v.  Vardill,  where 
a  child,  legitimate  to  all  purposes  in  Scotland,  was  denied  the 
full  rights  of  a  lawful  child  in  England.^  Yet  the  law  of  for- 
eign countries  as  to  legitimacy  is  so  far  respected  in  England 
that  a  person  illegitimate  by  the  law  of  his  domicile  of  birth 
will  be  held  illegitimate  in  England.^ 

The  doctrine  of  general  writers  is,  that  the  status  of  legiti- 
macy or  illegitimac}^,  or  the  capacity  to  become  legitimate  per 
s^ibsequens  matrimonium,  is  governed  by  the  law  of  the  domi- 
cile of  the  child's  origin.^  And,  since  the  domicile  of  origin 
is  that  of  the  father,  the  great  leading  fact  to  be  ascertained 
in  such  inquiries  will  be  generally  the  domicile  of  the  father.* 
A  person  born  before  wedlock,  who  in  the  country  of  his  birth 
is  considered  illegitimate,  will  not,  by  a  subsequent  marriage 
of  his  parents  in  another  country,  by  whose  laws  such  a  mar- 
riage would  make  him  legitimate,  cease  to  be  illegitimate  in 
the  country  of  his  birth. ^  On  the  other  hand,  without  a  sub- 
sequent marriage  of  his  parents,  lawful  by  the  laws  of  the 
land  where  celebrated,  it  is  clear  that  any  child  must  remain 
illegitimate,  whatever  be  the  domicile  of  his  origin, 

1  7  Cl.  &  Fin.  895  ;  4  Jur.  1076  ;  ib.  In  this  country  the  doctrine  of  Birt- 
5  B.  &  C.  438  ;  Story  Confl.  Laws,  §  93  whistle  v.  Vardill  is  sometimes  followed 
et  seq.,  where  the  doctrine  of  Birtwhis-  in  matters  of  inheritance.  Smith  v. 
tie  y.  Vardill  is  strongly  combated.  See  Derr,  34  Penn.  St.  126.  And  this,  not- 
Boyes  v.  Bedale,  12  W.  R.  232,  before  withstanding  the  child  was  begotten  in 
Wood,  V.  C. ;  Story  Confl.  Laws,  6th  the  State  where  the  question  of  inherit- 
ed. §  93  w,  n.  by  Redfield.  And  see  ance  afterwards  arose.  Lingen  v.  Lin- 
Goodman  V.  Goodman,  3  Gif.  643.  gen,  45  Ala.  410.     See  Miller  v.  Miller, 

2  Munro  v.  Saunders,  6  Bligh,  468;  cited  n.  supra. 

cases  cited  in  Birtwhistle  v.  Vardill,  9  ^  1  Burge  Col.  &   For.  Laws,  111. 

Bligh,  52.     But  a  foreign  legitimation  And  see  Skottowe  v.  Young,  supra. 
was  so  far  respected  in  a  late  case  that  *  Fraser  Parent  &  Child,  45. 

a  succession  tax  was  not  laid  upon  the         ^  Story    Confl.  Laws,    §  106.      See 

child  as  a  stranger  in  blood.     Skottowe  Succession  of  Caballero,  24  La.  Ann. 

V.  Young,  L.  R.  11  Eq.  474.  573. 


o 


15 


§  232  THE  DOMESTIC   RELATIONS.  [PAET   III. 

§  232.  Parental  Relation  by  Adoption.  —  By  adoption  a  quasi 
parental  relation  was  sometimes  constituted  at  the  civil  law. 
Adoption  is  the  taking  or  choosing  of  another's  child  as  one's 
own.i  The  adoption  of  children  is  still  regulated  in  Germany 
and  France,  but  is  not  generally  recognized  in  English  or 
American  law.  Adoption  was  not  possible  by  our  old  com- 
mon law.  But  in  Massachusetts  it  is  recently  provided  that 
under  a  judicial  decree,  rendered  upon  due  investigation,  any 
person  may  adopt  as  his  own  the  child  of  others ;  and  that 
the  child  so  adopted  shall  be  deemed,  for  the  purposes  of  in- 
heritance and  all  other  legal  consequences  and  incidents  of 
the  natural  relation  of  parents  and  children,  the  child  of  the 
parents  by  adoption,  the  same  as  if  he  had  been  born  to  them 
in  lawful  wedlock.^  In  Louisiana,  the  laws  once  authorized 
adoption  ;  but  this  was  changed  by  the  Code  of  1808.  Yet 
adoption  by  special  act  of  the  legislature  is  not  unknown  in 
that  State.^  There  are  other  States  in  which  adoption  is  now 
permitted,  and  the  rights  of  the  parent  b}^  adoption  are  treated 
substantially  as  those  of  a  natural  parent.*  But  our  local  leg- 
islation has  sometimes  discountenanced  the  adoption  of  a 
stranger  as  co-heir  with  one's  own  child.^ 

The  method  of  adoption  in  States  which  permit  it  is  pointed 
out  by  local  law.  In  some  States  a  written  instrument  must 
be  executed  and  recorded.^  In  others  a  judicial  decree,  upon 
due  notice  to  kindred,  or  their  assent,  is  requisite.'     Under 

1  Inst.  I.  11,  1 ;  Bouvier  Law  Diet.  Eoberts,  115  Mass.  262.  And  see  Ing- 
"  Adoption."  ram  i-.  Soutten,  L.  R.  7  H.  L.  408. 

2  Mass.  Gen.  Sts.  c.  110 ;  Sewall  v.         «  Tyler  v.  Reynolds,  53  Iowa,  146. 
Roberts,  115  Mass.  262.  ^  Ballard  v.  Ward,  89  Fenn.  St.  358. 

3  Vidal  V.  Commajere,  13  La.  Ann.  The  Louisiana  statutes,  as  to  adoption, 
616.  do  not  mean  to  abridge  the  right  of  a 

*  Rives  V.  Sneed,  25  Ga.  612  ;  Lunay  natural  tutor  to  his  minor  child.     Suc- 

V.  Vantyne,  40  Vt.  501.  cession   of  Forstall,  25  La.  Ann.  430. 

5  Teal  V.  Sevier,  26  Tex.  516.  See  The  adoption  by  instrument  may  re- 
Johnson's  Appeal,  88  Penn.  St.  846 ;  quire  the  surviving  parent  to  assent. 
Wagner  v.  Varner,  50  Iowa,  532.  An  Long  v.  Hewitt,  44  Iowa,  368.  But  the 
adopted  child  usually  inherits  from  the  release  of  parental  authority  is  not  rev- 
adopting  parent,  and  vice  i^ersa ;  but  ocable  at  pleasure.  Jones  v.  Cleg- 
otherwise  as  to  collateral  kindred,  horn,  54  Ga.  9.  Equity  cannot  dispense 
Barnhizel  r.  Ferrell,47  Ind.  .335.  Such  with  strict  statute  compliance  as  to 
child  may  inherit  under  a  trust  to  one's  adoption.  Long  v.  Hewitt,  supra. 
"issue,"  though  not  where  "heir  of  A  statute  making  an  adopted  child 
body"  is  the  e.xpression,      Sewall   v.  legally  the  cliild  of  the  parents  by  adop- 

316 


CHAP.  II.]  DUTIES   OF   PARENTS.  §  234 

the  Roman  civil  law  consanguinity  was  not,  as  our  English 
common  law  regards  it,  an  essential  basis  to  the  filial  rela- 
tion ;  for  infants  were  exposed  to  death,  and  indifference  to 
blood  offspring,  as  well  as  to  the  ties  of  lawful  wedlock,  char- 
acterized the  law  of  family  in  the  decaying  age  of  the  empire. 
Adoption  was  a  convenience,  however,  even  thus,  for  the 
transmission  of  wealth  and  titles ;  and  by  adoption,  more- 
over, we  find  an  nnfruitful  couple  at  the  present  day,  and 
in  our  own  country,  grafting  the  tree,  in  obedience  to  the 
best  of  parental  instincts. 


.     CHAPTER   11. 

THE  DUTIES   OF   PARENTS. 

§  233.  Leading  Duties  of  Parents  enumerated.  —  Three  lead- 
ing duties  of  parents  as  to  their  legitimate  children  are 
recognized  at  the  common  law :  firsts  to  protect ;  second^  to 
educate  ;  thirds  to  maintain  them.  These  duties  are  all  en- 
joined by  positive  law ;  yet  the  law  of  the  natural  affections 
is  stronger  in  upholding  such  fundamental  obligations  of  the 
parental  state. ^ 

§231.  Duty  of  Protection;  Defence,  Personal  and  Legal. — 
First,  as  to  protection  :  that  cover  or  shield  from  evil  and 
injury  which  is  afforded  by  the  parent.  This  duty  the 
stronger  owes  to  the  weaker,  and  especially  does  the  father 
owe  it  to  his  child,  so  long  as  the  latter  remains  compara- 
tively helpless.     This  obligation  may  be  shifted  in  time,  as 

tion  is  not  unconstitutional  unless  in-  rules   of   descent   are   not  necessarily 

terfering  witli  vested  riglits.     Sewall  r.  changed   bj'  statutes  of  adoption  ;  but 

Roberts,  115  Mass.  262.     Under  the  rule  on  death  of  an  adopted  child  his  estate 

of  comity,   adoption    in  another  State  goes  to  his  blood   relations.     Reinders 

may  be  liere  recognized  under  suitable  v.  Koppelmann,  68  Mo.  482. 
circumstances.    Ross  r.  Ross,  120  Mass.  -  1  Bl.  Com.  447  ;  2  Kent  Com.  189  ; 

243.     But  not  where  the  courts  of  that  Taylor's  Civil  Law,  383  ;  Puff.  b.  4, 

State  had  not  jurisdiction.     Foster  v.  ch.  11,  §§  4,  5. 
Waterman,   124   Mass.   592.      General 

317 


§  235  THE   DOMESTIC   RELATIONS.  [PART   III. 

age  adds  to  the  strength  of  the  one,  and  the  infirmities  of 
the  other. 

It  is  to  the  credit  of  our  civilization  that  the  natural  duty 
of  protection  is  rather  permitted  than  enjoined  by  any  muni- 
cipal laws ;  nature  in  this  respect  "  working  so  strongly,"  to 
use  the  forcible  words  of  Blackstone,  "  as  to  need  rather  a 
check  than  a  spur."  ^  The  strongest  illustration  of  protec- 
tion at  the  common  law  which  is  furnished  by  this  learned 
writer,  —  that  of  a  father  who  revenged  his  son's  injury  by 
going  near  a  mile  and  beating  the  offender  to  death  with  a 
cudgel,  —  though  affording  a  questionable  legal  principle,  as 
he  puts  it,  at  least  shows  what  the  verdicts  of  our  juries  are 
constantly  confirming,  that  the  sympathies  of  human  tribu- 
nals are  with  him  who  defends  his  own  offspring,  even  when 
his  zeal  outruns  his  discretion.^ 

A  parent  may,  b}^  the  common  law  of  England,  maintain 
and  uphold  his  children  in  their  lawsuits,  without  being 
guilty  of  the  legal  crime  of  maintaining  quarrels.^  He  may 
also  justify  an  assault  and  battery  committed  in  defence  of 
the  persons  of  his  children.^  On  the  other  hand,  as  we  shall 
hereafter  see,  where  he  is  cruel  and  devoid  of  natural  affec- 
tion, his  children  may  be  taken  from  his  personal  keeping  ; 
nay,  he  may  be  subject  to  punishment  for  his  own  misconduct. 
The  doctrine  of  parental  protection  seems  to  have  required 
little  or  no  special  judicial  discussion  in  modern  times. 

§  235.  Duty  of  Education.  —  Second.  The  second  duty  of 
parents  is  that  of  education ;  a  duty  which  Blackstone  pro- 
nounces to  be  far  the  greatest  of  all  these  in  importance.^ 
This  importance  is  enhanced  by  the  consideration  that  the 
usefulness  of  each  new  member  of  the  human  family  to 
society  depends  chiefly  upon  his  character,  as  developed  by 
the  training  he  receives  in  early  life.  Not  the  increase  of 
population,  but  the  increase  of  a  well-ordered,  intelligent, 

1  1  Bl.  Com.  450.  bound  to  eniplo}'  counsel  to  defend  the 

2  See  1  Hawk.  P.  C.  83,  cited  in  1  suits  of  his  minor  ciiildren.  Hill  v. 
Bl.    Com.   450,   and   n.   by    Coleridge,     Childress,  10  Yerg.  514. 

citing  Post.  294,  and  2  Ld.  Raym.  1498,         *  1    Hawk.   V.  C.   131 ;  1  Bl.  Com. 
in  opposition  to  Blackstone's  remark.       450.     See  uifra. 

3  2  Inst.  5G4.     But  a  parent  is  not         ^  1  Bl.  Com.  450. 

318 


CHAP.  II.]  DUTIES   OF   PARENTS.  §  235 

and  honorable  population,  is  to  determine  the  strength  of  a 
State  ;  and,  as  a  civil  writer  observes,  the  parent  who  suffers 
his  child  to  grow  up  like  a  mere  beast,  to  lead  a  life  useless 
to  others  and  shameful  to  himself,  has  conferred  a  very  ques- 
tionable benefit  upon  him  by  bringing  him  into  the  world.i 
Solon  excused  the  children  of  Athens  from  maintaining  their 
parents,  if  they  had  neglected  to  train  them  up  in  some  art 
or  profession.2  So  intimately  is  government  concerned  in  the 
results  of  early  training,  that  it  interferes,  and  justly,  too, 
both  to  aid  the  parent  in  giving  his  children  a  good  education, 
and  in  compelling  that  education,  where  the  parent  himself, 
and  not  the  child,  is  delinquent  in  improving  the  opportuni- 
ties offered.^ 

Questions  of  parental,  and  more  particularly  religious  edu- 
cation arise  often  in  English  law  under  the  will  of  the  father. 
It  is  laid  down  as  the  rule,  that  where  one  has  left  no  direc- 
tion in  his  will  as  to  the  religion  in  which  his  children  are  to 
be  educated,  it  will  be  presumed  that  his  wishes  were  that 
they  shall  be  educated  in  his  own  religion.^  Further,  that 
the  religious  education  of  an  infant  of  fifteen  will  not  be 
changed  unless  the  infant  wishes  it.^  But  no  regard  is  paid 
to  the  wishes  of  a  child  ten  years  old.^  The  father  is  allowed 
to  designate  the  plan  of  education  to  be  followed  with  respect 
to  his  children  after  his  death.  And  while,  as  Lord  Cotten- 
ham  has  observed,  he  has  no  power  to  prescribe  a  particular 
religion  to  his  child,  yet  he  has  indirectly  the  power  of 
effecting  his  object  by  the  choice  of  a  guardian.''' 

The  English  courts  of  chancery  have  indeed  exercised  con- 
siderable jurisdiction  over  the  education  of  minor  wards  :  a 
topic  which  very  seldom  engages  the  attention  of  American 

1  Puff.  Law  of  Nations,  b.  6,  cb.  2,  5  Witty  v.  Marshall,  1  You.  &  C.  N. 
§  12.  C.  68. 

2  Plutarch's  Lives;  2  Kent  Com.  195.         ^  Regina  v.  Clarke,  7  El.  &  B.  186. 

3  Under  existing  statutes  a  parent  And  see  Hawksvvorth  v.  Hawksworth, 
may  be  prosecuted  for  neglecting  to  L.  K.  6  Ch.  539. 

educate  his   child.     School    Board   v.  ''  Talbot  v.  Earl  of  Shrewsbury,  18 

Jackson,  7  Q.  B.  D.  502.  L.  J.  125  ;  Macphers.  Inf.  126.    See  also 

*  In  re  North,  llJur.  7,  V.  C.  Bruce  ;  Hill  v.  Hill,  8  Jur.  n.  s.  G09.     And  see 

Macphers.  Inf.  555 ;  Campbell  v.  Mac-  Fraser  Parent  &  Child,  82. 


kay,  2  Myl  &  Cr.  34. 


319 


§  235  THE   DOMESTIC   RELATIONS.  [PART    III. 

tribunals.  While  the  penal  laws  against  Roman  Catholics 
were  in  full  force  in  England,  it  was  considered  the  duty  of 
the  Court  of  CJiancery,  by  analogy  to  the  statute  law,  to  see 
that  all  infants  under  its  control  should  be  brought  up  in  the 
Protestant  religion.^  A  case  is  reported  in  which  Lord  Cow- 
per  ordered  a  Roman  Catholic  girl  to  be  sent  to  a  Protestant 
school,  evidently  with  a  view  to  her  conversion.^  With  the 
progress  of  religious  toleration  came  a  different  rule  of  prac- 
tice ;  and  it  is  now  a  question  whether,  under  any  circum- 
stances, the  court  would  interfere  with  the  testamentary 
guardian,  and  the  infant's  religion  as  designated  by  the 
father ;  indeed,  according  to  many  late  decisions,  the  Roman 
Catholic  faith  appears  in  this  respect  as  much  favored  as  the 
Protestant.3  But  schemes  of  education,  in  cases  of  disa- 
greement among  guardians,  are  still  prescribed' in  chancery.* 
So  the  rights  of  the  guardian  as  judge  of  the  place  of  his 
ward's  education  have  been  sometimes  enforced  in  equity 
against  the  ward's  own  wishes.^''  And  the  courts  are  disposed 
to  uphold  the  father  in  his  reasonable  views  against  the 
mother's  religious  convictions,  or  those  of  the  children  them- 
selves.^ Courts  of  chancery,  in  short,  have  jurisdiction  to 
superintend  the  education  of  infant  children.     Yet  the  Eng- 

1  Macphers.  Inf.  123;  Lady  Teyn-  Oxford  to  Cambridge;  and  upon  his  re- 
ham's  Case,  9  Mod.  40.  peated  disobedience  there  went  another 

2  Hill  V.  Filkin,  2  P.  Wms.  5.  And  tarn  to  carry  him  to  Cambridge,  qiiam 
see  Blake  t^.  Leigh,  Ambl.  306;  Jac.  to  keep  him  there.  See  Macphers.  Inf. 
264  n. ;  In  re  Bisliop,  Reg.  Lib.  1774,  121,  141.  ^ 
cited  in  Macpliers.  Inf.  124.                             •)  In  several  late  English  cases,  where 

^  Talbot   V.  Earl  of  Shrewsbury,  18  the  young  children,  under  the  mother's 

L.  J.  125,  per  Lord   Ch.    Cottenliam.  influence,  were  likely  to  become  either 

And  see  Regina  v.  Clarke,  7  El.  &  B.  Roman  Catholics  or  Atheists,  cliancery 

186;  Hawksworth  v.   Hawksworth,  L.  interposed    to   carry    out- the    fatlier's 

R.  6  Ch.  539.   But  cf.  Agar-Ellis  v.  Las-  wishes  and  bring  them  under  Protest- 

celles,  L.  R.  10  Ch.  D.  49;  D'Alton  v.  ant  influence;  and  this, notwithstanding 

D'Alton,  L.  R.  4  P.  D.  87.  a  volimtary   or  judicial  separation  of 

*  Campbell  v.  Mackay,  2  Myl.  &  Cr.  the  parents  which  had  given  tlie  mother 

34;  Macphers.  Inf.  555  tlie  children's  custoily.     Agar-ElIis  v. 

5  Tremain's  Case,  Stra,  168  ;  Hall  v.  Lascelles,  L.  R.  10  Ch.  J).  49 ;  Besant 

Hall,  3  Atk.  721.    In  Tremain's  case,  an  in  re,  L.  R.  11  Ch.  D.  508.    In  D'Alton 

"infant"  went  to  O.xford  contrary  to  i'.    D'Alton,   L.  R.   4    P.    D.    87,   both 

the  orders  of  his  guardian,  who  wished  parents   had   been   Roman    Catholics, 

him  to  study  at  Cambridge.    Tlie  court  and  the  father  afterwards   became   a 

sent  a  messenger  to  carry  him  from  Protestant. 

820 


CHAP.  II.]  DUTIES   OF   PARENTS.  §  236 

lish  courts  seem  to  have  acted  rather  for  the  purpose  of 
securing  the  control  of  the  child's  education  to  the  proper 
person,  or  upholding  the  father's  wishes,  than  to  make  inde- 
pendent regulations  of  their  own  according  to  the  child's 
welfare. 1  In  this  respect,  as  well  as  in  enforcing  the  disabihties 
of  the  law  against  Roman  Catholics  and  dissenters,  chancery- 
was  manifestly  influenced  by^  considerations  of  national  policy. 

Should  such  a  subject  come  before  the  courts  of  this  coun- 
try, they  might  fairly  take  a  different  course,  more  in  accord- 
ance with  American  legislation.  Our  municipal  laws  in 
general  provide  for  the  infant's  educational  wants  ;  and  this 
whole  jurisdiction  is  one  of  great  embarrassment  and  respon- 
sibility. We  do  not  find  a  leading  American  case  decided 
with  direct  and  sole  reference  to  the  education  of  young  chil- 
dren.^ But  there  are  several  late  decisions  concerning  the 
right  of  public  school  boards  to  issue  general  regulations  con- 
cerning the  admission,  suspension,  or  dismissal  of  pupils. 
And  in  some  States  the  father  of  a  child  may  apply  for 
mandamus  against  the  board  to  compel  them  to  admit  to 
the  public  school  his  child,  who  has  been  unlawfully  ex- 
cluded.^ 

§  236.  Duty  of  Maintenance  in  General.  —  The  third  parental 
duty  is  that  of  maintenance.  It  is  a  plain  precept  of  uni- 
versal law  that  young  and  tender  beings  should  be  nurtured 
and  brought  up  by  their  parents  ;  and  this  precept  have  all 
nations  enforced.  So  well  secured  is  the  obligation  of  main- 
tenance that  it  seldom  requires  to  be  enforced  by  human 
laws.*  Are  we  brought  into  this  world  to  peiish  at  the 
threshold  by  suffering  and  starvation  ?  No  ;  but  to  live  and 
to  grow.  Some  one,  then,  must  enable  us  to  do  so  ;  and  upon 
whom  more  justly  rests  that  responsibility  than  upon  those 
who  brought  us  into  being?  Hence,  as  Puffendorf  observes, 
the  dut}^  of  maintenance  is  laid  on  the  parents,  not  only  by 
nature  herself,  but  by  their  own  proper  act  in  bringing  the 

1  See  2  Story  Eq.  Juris.  §  1342  ;  3  People  v.  Board  of  Education,  18 
Wellesley  v.  Wellesley.  2  Bligli  n.  s.  Mich.  400.  See  further,  Burdick  v. 
124.  Babcock,  31  Iowa,  562;  Hodgkins  v. 

2  See  the  topic  of  Custody,  infra ;  Rockport,  105  Mass.  475. 
Jones  V.  Stockett,  2  Bland,  409.  *  2  Kent  Com.  189. 

21  321 


§  237  THE   DOMESTIC   RELATIONS.  [PART   HI. 

children  into  the  world.  By  begetting  them,  they  have  en- 
tered into  a  voluntary  obligation  to  endeavor,  as  far  as  in 
them  lies,  that  the  life  which  they  have  bestowed  shall  be 
supported  and  preserved.^ 

Maintenance  is  that  support  which  one  person  gives  to 
another  for  his  living.  This  word,  used  by  common-law 
writers,  corresponds  with  the  civil-law  term  "  aliment."  ^ 
The  obligation  on  the  parent's  part  to  maintain  the  child 
continues  until  the  latter  is  in  a  condition  to  provide  for  his 
own  maintenance ;  and  it  extends  no  further,  at  common  law, 
than  to  a  necessary  support.^  The  Roman  system  carried  this 
obligation  so  far  that  it  would  not  suffer  a  parent  at  his  death 
to  totally  disinherit  his  child  without  expressly  giving  his 
reasons  for  so  doing.*  And  the  laws  of  Athens  were  to  the 
same  purport.^  Blackstone  does  not  appear  to  approve  of 
carrying  natural  obligation  so  far.  And  he  cites  Grotius  in 
support  of  a  distinction  which  limits  the  child's  natural  right 
to  necessary  maintenance  ;  what  is  more  than  that,  depending 
solely  upon  the  favor  of  parents,  or  the  positive  constitutions 
of  the  municipal  law.^  Coke  observes  that  it  is  "  nature's 
provision  to  assist,  maintain,  and  console  the  child." '' 

§  237.  Maintenance  at  Common  Law ;  Statute  Provisions.  — 
The  statute  43  Eliz.  c.  2,  slightl}'-  amended  by  5  Geo.  I.  c.  8, 
points  out  the  English  policy  in  this  respect.  It  is  provided 
by  this  statute  that  the  father  and  mother,  grandfather  and 
grandmother,  of  pooi",  old,  blind,  lame,  and  impotent  persons, 
shall  maintain  them  at  their  own  charges,  if  of  sufficient  abil- 
ity ;  and  if  a  parent  runs  away  and  leaves  his  children,  the 
municipal  authorities,  by  summary  judicial  process,  may  seize 
upon  his  rents,  goods,  and  chattels,  and  dispose  of  them  to- 
ward their  relief.^     No  person  is  bound  to  provide  a  mainte- 

1  Puff.  Law  of  Nations,  I.  4,  ch.  11 ;  extent.  See  Mass.  Gen.  Sts.  c.  92, 
1  Bl.  Com.  447.  §§  26,  27. 

2  Cf.  Macphers.  Inf.  210,  andFraser         ^  2  Potter  Greek  Antiq.  351. 
Parent  &  Child,  85.  «  Grot.  De  J.  B.  et  P.,  L  2,  c.  7,  n. 

3  2  Kent  Com   190 ;  1  Bl.  Com.  448.  2;  1  Bl.  Com.  448. 

*  Dig.  28,  230;  Nov.  115,  c.  3.     The         ^  See  2  Kent  Com.  190. 
statutes  of  some  of  the  United   States  8  1  Bl.  Com.  448  ;  Stubb  v.  Dixon, 

favor  this  doctrine  to  nearly  the  same    6  East,  166 ;  Macphers.  Inf.  210.    These 

322 


CHAP.  II.]  DUTIES   OF   PARENTS.  §  237 

nance  for  his  issne,  except  where  the  children  are  impotent 
and  unable  to  act,  through  infanc}',  disease,  or  accident,  and 
then  is  only  obliged  to  fui'nish  them  with  necessaries,  the 
penalty  on  refusal  being  no  more  than  twentj^  shillings  a 
month.  "  For  the  policy  of  our  laws,  which  are  ever  watch- 
ful to  promote  industr3%"  says  Blackstone,  "  did  not  mean  to 
compel  a  father  to  maintain  his  idle  and  lazy  children  in  ease 
and  indolence ;  but  thought  it  unjust  to  oblige  the  parent 
against  his  will  to  provide  them  with  superfluities,  and  other 
indulgences  of  fortune ;  imagining  they  might  trust  to  the 
impulse  of  nature,  if  the  children  were  deserving  of  such 
favors."  ^  Lord  Eldon,  viewing  the  same  subject  afterwards 
in  the  light  of  equity  principles,  was  differently  impressed  by 
these  penal  provisions,  and  founded  the  jurisdiction  of  chan- 
cery upon  the  very  meagreness  of  the  common-law  remedies 
against  keeping  the  child  from  starvation.^ 

The  Stat.  43  Eliz.  may  be  considered  as  having  been  trans- 
ported to  the  United  States  as  part  of  our  common  law.  Its 
provisions  have  also  been  re-enacted  in  man}'-  of  our  States, 
as  in  New  Hampshire,  Connecticut,  and  South  Carolina.  In 
New  York,  Massachusetts,  and  some  other  States,  the  pro- 
vision as  to  grandparents  is  omitted.^  This  feeble  and  scanty 
provision  of  statute  law  was  intended,  as  Kent  observes,  for  the 
indemnity  of  the  public  against  the  maintenance  of  paupers.* 

In  absence  of  special  statutes  to  the  contrary,  the  father- 
in-law  is  not  obliged  in  this  country  to  maintain  his  step- 
children, and  consequently  is  not  entitled  to  their  earnings.^ 

statutes  did  not  extend  to  illegitimates  may  be  regarded  as  in  a  state  little 

or  step-children.     Tubb  t-.  Harrison,  4  better  than  that  of  starvation?     The 

T.  R.  118;  Cooper  v.  Martin,  4  East,  courts  of  law  can  enforce  tiie  rights  of 

76.     But  this  is  changed  by  Stat.  4  &  the  father,  but   they  are  not  equal  to 

5  Will.  IV.  c.  76.  the  office  of  enforcing  the  duties  of  the 

1  1  Bl.  Com.  449 ;  Winston  v.  New-  fatlier."  Wellesley  v.  Duke  of  Beau- 
comen,  6  Ad.  &  El.  301.  fort,  2  Russ.  23  (1827). 

2  "Is  it,"  says  he,  "an  eligible  ^  2  Kent  Com.  191,  and  note  ;  Dover 
thing  that  children  of  all  ranks  should  v.  McMurphy,  4  N.  H.  162 ;  Comm'rs 
be  placed  in  this  situation,  that  they  of  Poor  i'.  Gansett,  2  Bail.  320.  And 
shall  be  in  the  custody  of  the  father  J  see  Haynes'  Adra'r  v.  Waggoner,  25 
although,  looking   at   the  quantum   of  Ind.  174. 

allowance  which  the  law  can   compel         ^  2  Kent  Com.  191. 

the  father  to  provide  for  them,  they         ^  Commonwealth    v.    Hamilton,    6 

323 


§  237  THE   DOMESTIC   RELATIONS.  [PART  III. 

Under  the  pauper  acts,  it  is  held  that  the  father's  obligation 
to  support  his  vagabond  son,  who  cannot  support  himself,  does 
not  accrue  until  after  legal  proceedings  have  been  instituted ; 
and  the  furnishing  of  previous  supplies  constitutes  no  legal 
consideration  to  support  a  new  promise.^  Nor  is  an  insane 
mother,  herself  a  pauper,  under  obligation  to  support  a  minor 
child,  or  entitled  to  his  earnings  ;  ^  indeed,  an  adult  son, 
under  some  statutes,  is  compelled  to  support  his  mother.^ 

In  general,  the  legal  obligation  of  the  father  to  maintain 
his  child  under  the  common  law  ceases  as  soon  as  the  child  is 
of  age,  however  wealthy  the  father  may  be,  unless  the  child 
becomes  chargeable  to  the  public  as  a  pauper.^  And  as  the 
language  of  Stat.  43  Eliz.  rendered  it  inapplicable  to  step- 
children, so  does  it  apply  to  blood  relations  only ;  and  the 
husband  is  not  liable  for  the  expense  of  maintaining  his  wife's 
mother,^  nor  the  father  for  his  daughter's  husband;  ^  nor  a 
man  who  marries  for  his  pauper  step-children.'^  But  a  quasi 
parental  relation  may  sometimes  be  established  ;  and  one  may 
stand  in  loco  parentis  to  another,  and  thus  become  responsi- 
ble for  the  maintenance  and  education  of  the  latter,  on  the 
principle  that  the  child  is  held  out  to  the  world  as  part  of  his 
family.^ 

In  a  state  of  voluntary  separation,  the  husband  jjrima  facie , 
and  not  the  wife,  is  liable  for  the  support  of  children  living 
with  her  ;  and  if  the  wife  be  justified  in  leaving  her  husband's 
house  and  taking  the  child  with  her,  she  may  pledge  his 
credit  for  the  child's  necessaries  as  well  as  her  own,  so  long 
as  he  neglects  to  make  reasonable  effort  to  regain  the  child's 

Mass.  253,  275;  Freto  v.  Brown,  4  ib.  Anrlrew  r.  De  Breta,  1  Ld.  Ra3'm.  699. 

675;  Worcester  i;.  Marchant,  14  Pick.  The    father,    having    a    fair    capital, 

510 ;  Bond  v.  Lockwootl,  33  111.  212 ;  c.  may  be   liable   under   statute   for  the 

5,  post.  support  of  his  adult   pauper  daughter 

1  Mills  V.  Wyman,  3  Pick.  207  ;  as  of  "  sufficient  ability,"  even  though 
Looniis  V.  Newliall,  15  ib.  159.  his  income  be  less  tlian  his  expenses 

2  Jenness  v.  Emerson,  15  N.  H.  486.  and  liis  health  infirm.  Templeton  v. 
And  see   Sanford  v.  Lebanon,  31  Me.  Stratton,  128  Mass.  137. 

124;   Parmington   v.  Jones,  36  N.   II.  ^  ]jex  v.  Munden,  1  Stra.  190. 

271.  ^  Friend  r.  Tiiompson,  Wriglit,  636. 

3  Smith  V.  Lapeer  County,  .34  Mich.  '^  Brookfieldy.  Warren, 128  Mass.  127. 
58  ;  Dierkes  v.  Phila.,  93  Penn.  St.  270.  ^  See  post,  c.  .3,  as  to  step-children, 

*  2  Kent   Com.    192  ;  Parish  of  St.     &c. ;  supra,  §  232. 

324 


CHAr.  II.]  DUTIES    OP    PARENTS.  §  2£8 

custody.^  But  the  wife  carries  no  such  agency  with  her 
when  divorced,  though  it  be  for  the  husband's  fault,  and 
from  bed  and  board  only.^  And  while  in  case  of  either  sepa- 
ration or  divorce,  without  orders  of  custody,  the  obligation 
in  general  continues  as  before,  it  may  be  materially  affected 
by  the  special  circumstances  of  each  case  ;  while  an  award  of 
children  to  the  mother  should  be  presumed  to  carry  with  it  a 
transfer   of  parental   duties,  as    well  as  of  parental  rights.^ 

/But  a  father,  as  against  the  public  and  his  children,  cannot, 
it  is   well  settled,  escape  the  duty  of  providing  for  the  chil- 

'  dren's  support ;  even  if  they  remain  with  their  mother  after 
divorce.* 

§  238.  Maintenance,  &c.,  in  Chancery  ;  Allowance  from  Child's 
Fortune. —  We  pass  from  maintenance  under  statute  to  chan- 
cery maintenance,  a  topic  considered  in  connection  with  edu- 
cation. Maintenance  as  ordered  by  courts  of  equity,  or 
allowed  in  settlement  of  a  trust  account,  has  grown  into  a 
topic  of  considerable  magnitude,  especially  under  the  English 
s3-stem.  The  rule  is,  that  where  an  infant  has  property  of 
his  own,  and  his  father  is  dead,  or  is  not  able  to  support  him, 
he  may  be  maintained  and  educated  as  may  be  fit,  out  of  the 
income  of  property,  absolutely  his  own,  by  the  person  in 
whose  hands  the  property  is  held  ;  and  a  court  of  equity  will 

^  TJumney  v.  Kej'es,   7  N.   H.  571 ;  plerlge  the    husband's    credit  for  the 

Kimball     v.    Keyes,    11      Wend.    32;  child's  reasonable  expenses;  she  hav- 

Walker  f.  Laighton,  11  Fost.  Ill ;  Gill  ing   no   adequate    means    of    support. 

V.  Kead,  5  R.  I.  343.     And  see  Rcy-  Bazeley  i'.  Forder,  L.   R.  3  Q.   B.  559. 

nolds  V.  Sweetser,  15  Gray,  78 ;  Grun-  See  infra,  §  2o9. 

hut  V.  Rosenstein,  7  Daly,  164.  *  Courtright  v.  Courtright,  40  Mich. 

2  Hancock  y.  Menick,  10  Cush.  41 ;  633;  Conn  v.  Conn,  57  Ind.  323; 
Fitler  i>.  Fitler,  33  Penn.  St.  50;  Bur-  Thomas  v.  Thomas,  41  Wis.  229; 
ritt  V.  Burritt,  29  Barb.  124.  Welch's  Appeal,  43  Conn.  342  ;  Buck 

3  Stanton  v.  Willson,  3  Day,  37,  ap-  v.  Buck,  60  111.  105.  Local  statutes 
pears  to  carry  the  mother's  right  much  affect  this  question  considerably  ;  and 
farther  ;  but  its  authority  is  question-  the  award  of  alimony  is  a  matter  of 
able.     We  must  admit,  however,  that  judicial  discretion  in  divorce  suits. 

in   a   late   English   case,   presenting  a  When  custody  of  a  child  is  given  to 

strong   state   of  facts,    a   woman    who  the   mother  on   her  divorce  from  the 

lived  apart  from  her  husband  for  suf-  child's   father,    the    latter,    having    no 

ficient  cause,  having  with  her,  against  riglit   to    the   child's  services,   is  free 

her  husband's  will,  their  child,  of  whom  from    liability   to   the  mother   for   the 

a  court  had  given  her  the  custody,  was  child's  maintenance.     Husband  v.  Hus- 

allowed    (.Cockburn.    C.    J.,    dis.)    to  band,  (J7  Ind.  583. 

325 


§  2C8  THE   DOMESTIC   RELATIONS.  [PART   III. 

allow  all  payments  made  for  this  purpose,  which  appear  upon 
investigation  to  have  been  reasonable  and  proper.^  As  a 
general  rule,  the  father  must,  if  he  can,  maintain  as  well  as 
educate  his  infant  children,  whatever  their  circumstances 
ma}'  be ;  and  no  allowance  will  be  made  him  out  of  their 
property,  while  his  own  means  are  adequate  for  such  pur- 
poses. This  principle  is  clearly  established,  both  in  England 
and  America.^  And.  the  strict  rule  of  the  common  law  re- 
garded the  parent  as  without  legal  right  to  reimbursement 
for  his  outlay  in  this  direction. 

But  if  the  father  is  unable  to  maintain  his  children,  the 
court  of  chancery  will  order  maintenance  for  them  out  of 
their  own  property.^  And  where  the  question  turns  upon 
the  father's  ability,  maintenance  is  given,  not  only  in  case  of 
his  bankruptcy  or  insolvenc}^  but  whenever  it  appears  that 
he  is  so  straitened  in  his  circumstances  that  he  cannot  give 
the  child  a  maintenance  and  education  suitable  to  the  child's 
fortune  and  expectations.^  The  amount  of  such  fortune,  as 
well  as  the  situation,  ability,  and  circumstances  of  the  father, 
will  be  taken  into  account  by  the  court  in  all  such  cases. 

Courts  now  look  with  great  liberality  to  the  state  of  facts 
in  each  particular  case  of  this  kind  before  them.  Thus,  there 
are  precedents  in  the  English  courts  where  the  father  had  a 
large  income,  and  yet  was  allowed  for  the  maintenance  of  his 
infant  children,  they  having  an  income  still  larger ;  °  though 
the  increasing  liberality  of  the  courts  in  that  countr}^  is  now 
chief!}'  exliibited  in  their  construction  of  written  directions 
for  maintenance  now  so  common  in  deeds  of  settlement  and 

1  Macpliers.  Inf.  213;  2  Story  Eq.  11  Busli,  120;  Buckley  n.  Howard,  35 
Juris.  §  1354.  Tex.  565. 

2  Macpliers.  Inf.  145,  219 ;  Welles-  ^  2  Kent  Com.  191  ;  Macpliers.  Inf. 
ley  V.  Beaufort,  2  Russ.  28  ;   Butler  v.  220. 

Butler.  3  Atk.  60  ;  2  Kent  Com.  101  ;  *  Buckworth  v.  Buckwortli,  1  Cox, 

Darley  y.  Darley,  3  Atk.  399;  Cruger  80;  Macpliers.   Inf.  220;    Newport   v. 

V.  Heyward,  2  Desaus.  94;    Matter  of  Cook,  2  Ashm.  332;  Matter  of  Kane,  2 

Kane,   2   Barb.    Cli.   875 ;   Addison   v.  Barb.  Ch.  375. 

Bowie,  2  Bland,  606  ;  Harland's  Case,  ^  2  Kent  Com.  191;  Jervois  v.  Silk, 

5  Rawle,  323  ;  Myers  v.  Myers,  2  Me-  Coop.  Eq.  52  ;  2  Story  Eq.  Juris.  §  1354 

Cord  Ch.  255,  Tompkins  v.  Tompkins,  et  seq. ;  Greenwell  v.  GrLeiiweli,  5  Ves. 

3  C.  E.  Green,  303  ;  Tanner  v.  Skinner,  194  ;  Hoste  v.  Pratt.  3  Ye.s.  730  ,  Ex 


326 


parte  Penleaze,  I  Bro.  C.  C.  387, 7*. 


CHAP,  n.]  DUTIES   OF   PARENTS.  §  238 

other  instruments,  by  which  property  is  secured  to  the  infant.^ 
In  this  country  there  are  many  instances  where  the  father  has 
been  allowed  for  his  child's  maintenance,  though  not  desti- 
tute. As  in  a  case  where  the  father  was  guardian  of  his 
children,  labored  for  their  support,  and  had  been  put  to  in- 
creased expense  by  the  death  of  their  mother.^  And  again, 
where  his  resources  were  very  moderate,  and  the  two  chil- 
dren, young  ladies,  had  a  comfortable  income  between  them.^ 
So  where  the  father  was  poor  and  disabled,  and  his  daughter 
lived  with  him.^  Chancery  in  all  such  cases  endeavors  to 
pursue  the  course  which  is  best  calculated  to  promote  the 
permanent  interest,  welfare,  and  happiness  of  the  children 
who  come  under  its  care.  "  And  these,"  says  Chancellor 
Walworth,  "  are  not  always  promoted  by  a  rigid  economy  in 
the  application  of  their  income,  regardless  of  the  habits  and 
associations  of  their  period  of  minority.^  In  other  words,  to 
liberally  educate  and  make  due  use  of  such  social  advantages 
as  the  cliild's  own  means  permit,  is  incumbent  upon  every 
judicious  parent  ;  since  each  child  should  be  trained  with 
reference  to  his  own  opportunities  ;  and  hence  a  child  with 
fortune  should  not  be  straitened  in  his  bringing  up  because 
the  parent  is  without  one.  One  may  maintain  suitable  to  his 
own  condition  in  life,  while  it  is  fair  that  his  children  should 
be  supported  according  to  theirs.^ 

The  father  may  be  allowed  for  the  expenses  of  past  main- 
tenance and  education,  if  special  circumstances  exist ;  not 
otherwise,  according  to  the  English  rule  of  the  present 
day.'^     But   the  father's  non-residence,  and  consequent  ina^ 

1  See  Macphers.  Inf.  221-223 ;  Hey-  v.  Barnes,  64  Ala.  375.  Cf.  23  N.  J. 
sham   V.   lleysham,  1  Cox,  179.     And     Eq.  136,  296. 

see  Allen  v.  Coster,  1  Beasl.  201.  ^  Matter  of   Burke,  4   Sandf.   Ch. 

2  Harring  v.   Coles,   2  Bradf.   Sur.     G19. 

349.  f*  See   Haase   v.  Roerschild,  6   Ind. 

2  Matter  of   Burke,  4   Sandf.   Ch.  67  ;  Sparhawk  v.  Sparhawk's  Ex'r,  9 

617.  Vt.  41. 

4  Watts  I'.  Steele,  19  Ala.  656.     And  ^  2  Story  Eq.  Juris.  Redf.  ed.  §  1354  a; 

see  Godard  v.  Wagner,  2   Strobh.  Eq.  Carmichael  v.  Hughes,  6  E.  L.  &  Eq. 

1  ;    Newport  v.    Cook,   2   Ashm.   332 ;  73,    per  Lord    Cranworth ;    Ex  parte 

Otte  V.  Becton,  55   Mo.  99  ;  Trimble  v.  Bond,    2   Myl.  &   K.   439 ;    Brown  v. 

Dodd,  2  Tenn.   Ch.  500 ;  Holtzman  v.  Smith,  1  L.  R.  10  Ch.  D.  377. 
Castleman,  2  MacArthur,  555 ;  Baines 

32T 


§  238  THE  DOMESTIC   RELATIONS.  [PART  m. 

bility  to  make  a  seasonable  application  for  maintenance,  is 
held  a  special  circumstance  to  justify  such  allowance.^  While 
the  old  rule  was  to  make  no  allowance  for  past  maintenance, 
that  rule,  with  the  increase  of  wealth  and  liberal  living,  has 
been  greatly  relaxed  in  modern  times.  In  this  country,  too, 
as  to  retrospective  allowance,  chancery  does  not  appear  to  be 
very  strict  as  concerns  the  parent,  though  special  circum- 
stances should  always  be  chosen  for  making  it.^  Every  such 
case  must  depend  on  its  own  facts.  We  apprehend  that,  both 
in  England  and  America,  maintenance  would  be  allowed  the 
parent  from  the  estate  of  a  full-grown  child  only  on  proof  of 
some  contract.^ 

A  father,  even  if  he  be  not  in  needy  circumstances,  may 
maintain  his  children  out  of  any  fund  which  is  duly  vested 
in  him  for  that  express  purpose.*  One  may  also  contract  that 
certain  property  shall  be  applied  to  the  maintenance  and  edu- 
cation of  his  children,  in  which  case  also  the  contract  may  be 
enforced  in  his  favor,  without  regard  to  the  question  of 
ability  ;  and  on  this  ground  provisions  for  maintenance  in  an 
antenuptial  settlement  have  been  construed  in  favor  of  the 
husband  and  father.^  But  it  is  clear,  from  the  cases,  that 
where  the  fund  is  given  as  a  mere  bounty,  notwithstanding 
a  provision  for  maintenance,  the  father,  if  of  ability,  must 
support  the  child  ;^  and  this  principle  is  extended  to  the 
father's  postnuptial  and  voluntary  settlement  upon  his  chil- 
dren as  distinguished  from  antenuptial  contracts.'  This  will 
not  prevent  a  court  from  construing  such  provisions  in  a 
father's  favor,  where  the  facts  show  that  he  ought,  on  general 

1  Carmichael  v.  Hughes,  6  E.  L.  &  Watts,  7  Sim.  199  ;  Andrews  v.  Par- 
Eq.    71.     And   see    Stopford   v.   Lord     tington,  2  Cox,  223. 

Canterbury,    11    Sim.    82;    Bruin    v.  ^  Mundy  ;;.  Earl  Howe,  4  Bro.  C.  C. 

Nott,  1  Phill.  572;  1  Tamlyn,  22.  224;  Stocken  v.  Stocken,  4   Sim.  152; 

2  Matter  of  Kane,  2  Barb.  Ch.  375;  Macpliers.  Inf.  220;  Ransome  v.  Bur- 
Matter  of  Burke,  4   Sandf.   Cli.  619  ;  gess,  L.  R.  3  Eq.  773. 

Myers  v.  Myers,  2  McCord  Ch.  214;  ^  Hoste  v.  Pratt,  3  Ves.  729;  Ham- 
Trimble  V.  Dodd,  2  Tenn.  Ch.  500 ;  Otte  ley  v.  Gilbert,  Jac.  354 ;  Myers  v.  Myers, 
V.  Becton,  55  Mo.  99.  2  McCord  Ch.  255;  Jones  v.  Stockett, 

3  See  In  re  Cottrell's  Estate,  L.  R.  2  Bland,  409. 

12  Eq.  566 ;  infra,  c.  5 ;  Otte  v.  Becton,  ^  In  re  Kennison's  Trusts,  L.  R.  12 

55  Mo.  99.  Eq.  422. 

*  Macphers.  Inf.  220 ;    Hawkins  v. 

328 


CHAP.  II.]  DUTIES   OF    PARENTS.  §  239 

principles,  to  receive  assistance.^  Where  tlie  trustee  for  an 
infant,  in  the  exercise  of  rightful  discretion,  has  paid  over  to 
the  father,  at  his  request,  certain  sums  of  money  out  of  the 
income  of  the  trust  property,  the  father  being  a  bankrupt,  it 
is  held  that  no  promise  can  be  implied  under  such  circum- 
stances, on  the  part  of  the  father,  to  repa}^  to  the  trustee  the 
sums  of  money  thus  applied  when  he  afterwards  becomes 
able  to  do  so ;  there  should  be  something  to  show  an  express 
promise  of  repayment.^ 

§  239.  Chancery  Maintenance  as  to  Mother  ;  Separated  Parents, 
&c. —  The  mother,  after  the  death  of  the  father,  remains  the 
head  of  the  famil3\  She  has  the  like  control  over  the  minor 
children  as  he  had  when  living ;  and  she  is  then  bound  to  sup- 
port them,  if  of  sufficient  ability .^  This  we  hold  to  be  the 
rule  most  conformable  to  natural  justice  ;  though  there  are 
cases  and  statutes  which  would  seem  to  exempt  her  from  such 
obligations.*  The  statute  of  Elizabeth,  to  which  we  have 
already  referred,  expressly  includes  the  mother.  And  since 
the  tendency  of  the  day  is  to  give  the  mother  a  more  equal 
share  in  the  parental  rights,  it  follows  that  she  should  assume 
more  of  the  parental  burdens.  It  is  nevertheless  clear  that 
the  courts  show  special  favor  to  the  mother,  as  they  should ; 
and,  if  the  child  has  property,  they  will  rather  in  any  case 
charge  the  expenses  of  his  education  and  maintenance  upon 
such  property  than  force  her  to  contribute.^  A  court  of 
chancery  will  not  readily  make  the  support  and  education  of 
infant  children  a  charge  upon  the  property  of  their  widowed 
mother,  nor  upon  that  of  a  stepfather  who  has  not  undertaken 
to  stand  in  place  of  a  father,  while  their  own  means  are 
ample.^ 

1  See  Andrews  r.  Partington,  2  Cox,  275;  Hughes  r.  Hughes,  1  Bro.  C.  C. 
223,  commented  upon  in  Hoste  f.  Pratt,  388.  And  see  Lanoy  r.  Duchess  of 
3  Ves.  729.  Athol,  2  Atlc.  447  ;  Ex  parte.  Petre,  7 

2  Pearce  ;;.  Olney,  5  R.  I.  269.  See  Ves.  403 ;  Macp'.iers.  Inf.  224  ;  Beasley 
In  re  Stables,  13  E.  L.  &  Eq.  61.  v.  Magratli,  2   Sch.  &  Lef.  35 ;  Anne 

3  Dediiam  v.  Natick,  16  Mass.  140.       Walker's  Matter,  Cas.  temp.  Sugd.  299. 
*  Whipple   V.    Dow,   2   Mass.   415;     Mother's   discretion   overruled.     Tn   re 

Dawes  v.  Howard,  4  Mass.  97  ;  2  Kent     Roper's  Trusts,  L.  K.  11  Ch.  D.  272. 
Cora.  191,  and  cases  cited  ;  supra,  §  237.  ^  Mowbray  v.  iMowbray,  64  111.  383. 

5  lb. ;  Haley  v.  Bannister,  4  Madd.     Where  a  mother  has  maintained  her 

329 


§  240  THE  DOMESTIC   RELATIONS.  [PAET   IH. 

Where  the  court  takes  away  from  the  father  the  care  and 
custody  of  the  children,  chancery  does  not  call  in  aid  of  their 
own  means  the  property  of  the  father,  and  it  directs  mainte- 
nance out  of  their  own  fortunes,  whatever  may  be  their 
father's  circumstances.^  But  it  is  held  in  Illinois  that  where 
infants  are  taken  from  the  custody  of  their  father,  and  have 
no  property  of  their  own,  the  father  is  bound  to  support 
them  at  such  rate  as  the  court  may  order.^  Local  statutes 
sometimes  affect  the  rule  in  this  country  ;  while  in  the  di- 
vorce courts  an  order  of  maintenance  for  children  will  some- 
times be  made  on  somewhat  the  same  princij^le  as  alimony 
for  the  wife,  notwithstanding  the  guilt}''  husband  loses  their 
custody.^ 

If  the  father  is  alive  and  not  able  to  maintain  his  child, 
maintenance  will  be  allowed  without  considering  the  ability 
of  the  mother,  though  she  may  have  a  separate  income.^  And 
even  the  misconduct  of  the  father  will  not  always  exclude 
him  from  the  benefits  of  his  child's  fortune.^ 

§  240.  Chancery  Maintenance  ;  Income  ;  Fund.  —  Courts  of 
chancer}^  following  a  well-known  principle,  usuall)-  restrict 
the  extent  of  a  child's  maintenance  to  the  income  of  his  prop- 
erty.^ But  where  the  property  is  small,  and  the  income  in- 
sufQcient  for  his  support,  the  court  will  sometimes  allow  the 
capital  to  be  broken ; '  though  rarely  for  the  purpose  of  a 

infant  child  witliout  the  order  of  the  Osborne  »'.  Van  Plorn,  2  Fla.  360  ;  Brad- 
court,  it  is  held  that,  upon  his  decease,  shaw  v.  Bradsiiaw,  1  Russ.  528. 
she  can  claim  for  past  maintenance  ^  Wellesley  v.  Duke  of  Beaufort,  2 
only  such  sum  as  will  effectually  in-  Russ.  1;  Macphers.  Inf.  224. 
demnify  her  for  what  she  has  spent,  -  Cowls  v.  Cowls,  3  Gilm.  435.  And 
witiiout  reference  to  the  amount  of  see  supra,  p.  322  ;  McCarthy  v.  Hinman, 
his  fortune.     Bruin    v.   Knott,   9  Jur.  35  Conn.  538. 

979.     She   may  have   made   a   gift  of  ^  Milford  v.  INIilford,  L.  R.  1  P.  &  D. 

maintenance   to   him  so  as  to  be  pre-  715;  Schoul.  Hus.  &.  Wife,  §555;  Wil- 

cluded  from  claiming  anything  after-  son  ;■.  Wilson,  45  Cal  399. 

wards  by  way  of  recompense.     In  re  *  Macphers.  Inf.  224  ;  Haley  v.  Ban- 

Cottreh's   Estate,    L.   R.    12   Eq.   566.  nister,  4  i\Iadd.  275. 

But  in  any  case  the  widowed  mother  is  ^  Macphers.  Inf.   251.     See  Allen  v. 

entitled  to  a  reasonable  allowance  out  Coster,  1  Beav.  202. 

of  her  children's  estate  for  tlieir  main-  ^  2  Story  Eq.  Juris.   §   1355;  Mac- 

tenance,  where  her  own  means  are  lim-  phers.  Inf  252. 

ited.     Wilkes  v.  Rogers,  6  Johns.  506  ;  ''lb.;  Barlow  v.  Grant,  1  Vern.  255; 

Heyward  v.  Cuthbert,  4  Desaus.  445;  Bridge  v.  Brown,  2  You.   &  C.  C.  181; 

330 


CHAP.  II.]  DUTIES   OF  PARENTS.  §  241 

child's  past  maintenance  when  his  future  education  and  sup- 
port will  be  left  thereby  unprovided  for.^ 

We  have  assumed,  in  the  cases  already  considered,  that 
there  was  some  fund  in  which  the  infants  had  an  absolute 
right  or  interest.  Where  the  interest  is  merely  contingent 
the  rule  is  necessarily  strict.^  Maintenance  cannot  be  al- 
lowed to  infants  out  of  a  fund  which,  upon  the  happening  of 
the  event  contemplated  by  the  testator  in  the  bequest  of  the 
fund,  will  not  belong  to  the  infants  but  to  some  other 
person."^ 

§  241.  "Whether  Child  may  bind  Parent  as  Agent ;  Child's 
Necessaries.  —  Let  US  here  inquire  how  far  the  child  may  bind 
his  father  as  agent.  A  father  is  not  bound  by  the  contracts 
or  debts  of  his  son  or  daughter,  even  for  necessaries,  as  a 
rule,  unless  the  circumstances  show  an  authority  actually 
given  or  to  be  legally  inferred.^  The  principles  of  agency  as 
between  father  and  child  might  seem  analogous  to  those 
which  govern  the  relation  of  husband  and  wife  ;  which  last 
have  alread}^  been  considered  at  some  length.  On  the  one 
hand,  the  father  should  be  compelled  to  discharge  his  legal 
and  moral  obligations  as  a  parent,  by  providing  suitable 
necessaries ;  on  the  other,  he  should  not  be  prejudiced  by 
the  acts  of  his  imprudent  child. 

If,  then,  the  infant  child  resides  at  home,  it  is  to  be  presumed 
that  the  father  furnishes  whatever  is  necessary  and  proper  for 
his  maintenance  ;  and  a  proper  support  being  rendered,  under 
such  circumstances,  a  third  person  cannot  supply  necessaries 

Ex  parte  Green,  1    Jac.    &    W.    253;  procedure  In  securing  maintenance,  see 

Osborne  v.  Van  Horn,  2  Fla.  360  ;  New-  Macphers.  Inf.  214  et  srq.,  and  works  on 

port  0.  Cook,  2  Asiim.  3o2.     See  In  re  equity  procedure.     Maintenance  is  fur- 

Coe's    Trust,  4  Kay  &  J.  199 ;   Matter  ther  considered   under    Guardian   and 

of  Bostwick,  4  Jolms.  Cli.  100;  Don-  "Ward,  posf. 

ovan  V.  Needham,  15  L.  J.  193.     The  *  2   Kent   Com.   192;    Cromwell   v. 

terms  of  the  trust  may  impose  special  Benjamin,   41   Barb.   558;    Gordon   v. 

restrictions.     McKnight   v.   Walsh,  23  Potter,  17  Vt.  348;  Pidgin  ?--.  Cram,  8 

N.  J.  Eq.  1.36  .  N.  H.  350 ;  Raymond  v.  Loyl,  10  Barb. 

1  See  Otte  v.  Becton,  55  Mo.  99;  483;  Tomkins  v.  Tomkins,  3  Stockt. 
Cox  y.  Storts,  14  Busli,  502.  512;    Van  Valkenburg  v.  Watson,  13 

2  Ex  parte  Kehh\e,  11  Ves.  604.  Johns.  480;    Mortimore  v.   Wright,   6 

3  lb. ;  Errat  v.  Barlow,  14  Ves.  202 ;  M.  &  W.  482 ;  Kelley  v.  Davis,  49 
Turner  v.  Turner,  4  Sim.  430  ;  Matter  of  N.  H.  187. 

Davison,  6  Paige,  136.     As  to  rule  of 

331 


§  241  THE  DOMESTIC   EELATIONS.  [PART  HI. 

and  charge  the  father.  So  far,  all  is  clear.  Wherever  the 
infant  is  sub  polestate  parentis  in  fact,  there  must  be  a  clear 
and  palpable  omission  of  duty  in  this  respect,  on  the  part  of 
the  parent,  to  render  him  chargeable,  unless  he  has  conferred 
actual  authority  or  made  express  contract.^  The  converse 
of  this  rule  has  more  than  once  been  suggested  in  our  Amer- 
ican courts ;  namely,  that  where  the  father  abandons  his 
duty,  so  that  his  infant  child  is  forced  to  leave  his  house,  he 
is  liable  for  a  suitable  maintenance  furnished  the  child  else- 
where.^  And  upon  this  doctrine  was  a  Connecticut  case 
based  many  years  ago,  where  an  infant  child  had  "  eloped  " 
from  his  father's  house  for  fear  of  personal  violence  and 
abuse  ;  and  his  necessary  support  and  education  were  fur- 
nished by  a  stranger.^  It  must  be  admitted  that  this  doctrine 
of  an  implied  agency,  against  the  father's  wishes,  such  as  the 
common  law  raises  for  the  wife's  protection,  ought  hardly  to 
be  extended  in  an  equal  degree  to  persons  too  young  to  be 
sui  juris  ;  that  the  theory  above  advanced  is  supported  rather 
by  dicta  than  positive  adjudication  ;  and  that  whenever  ap- 
plied, such  a  rule  is  to  be  justified  rather  by  public  policy 
than  the  well-understood  liabilities  of  the  father,  as  defined 
by  Blackstone.  We  look  at  the  reports  and  find  that  in 
nearly  every  instance  the  father  was  held  to  be  discharged 
from  the  obhgation,  or  else  was  made  liable  on  other  grounds. 
There  can  be  no  doubt  that  a  parent  is  under  a  natural  obli- 
gation to  provide  necessaries  for  his  minor  children.  But 
how  that  obligation  is  to  be  enforced  is  not  so  clear.^  In 
Vermont,  this  doctrine  of  implied  agency,  against  the  father's 
wishes,  was  disapproved  in  a  case  which  discusses  the  subject 
full}^ ;  though  the  facts,  it  must  be  conceded,  showed  no 
clear  omission  of  parental  duty.^     In  fine,  either  an  express 

'  Tomkins   v.   Tomkins,   3   Stockt.  But  the  point  decided  was  a  different 

512;   Townsend  t».  Burnliam,  33  N.   H.  one. 

27  ;  Clinton  v.  Rowland,  24  Barb.  6.3i  ;  *  \  bj.  Com.  447  ;  Edwards  v.  Davis 

Keaton  v.  Davis,  18  Geo.  457  ;  Gotts  v.  16  Johns.  28-5  ;   Jn  re  Ryder,  11  Paige 

Clark,  78  111.  229;  Rogers  v.  Turner,  188;  2  Kent  Com.  190.     In  New  York 

69  Mo.  116.  there  is    some   confusion   of    opinion. 

■^  Owen  y.  White,  5  Port.  435,  and  Cf.   Raymond   v.  Loyl,  10  Barb.  483, 

cases  cited  in  the  two  preceding  notes,  with  New  York  cases,  supra. 

3  Stanton  v.   Wilison,   3    Day,  37.  ^  Gordon  v.  Potter,  17  Vt.  348. 
332 


CHAP.  II.]  DUTIES   OF  PARENTS.  §  241 

promise,  or  circumstances  from  which  a  promise  by  the  father 
can  be  inferred,  is  essential.^ 

The  hitest  English  decisions  are  clearly  against  allowing 
the  child  to  pledge  his  father's  credit  for  necessaries  to 
enforce  a  moral  obligation.  There  must  be  some  contract, 
express  or  implied,  in  order  to  charge  him.  If  a  child  be 
turned  upon  the  world  by  his  father,  he  can  only  apply  to 
the  parish,  and  they  will  compel  the  father,  if  of  ability,  to 
pay  for  his  support.  Says  Lord  Abinger :  "  In  point  of  law, 
a  father  who  gives  no  authority,  and  enters  into  no  contract, 
is  no  more  liable  for  goods  supplied  to  his  son,  than  a  brother, 
or  an  uncle,  or  a  mere  stranger  would  be.  From  the  moral 
obligation  a  parent  is  under  to  provide  for  his  children,  a  jury 
are,  not  unnaturally,  disposed  to  infer  against  him  an  admis- 
sion of  a  liability  in  respect  of  claims  upon  his  son,  on  grounds 
which  warrant  no  inference  in  point  of  law."  ^ 

But  very  slight  evidence  may  sometimes  warrant  the  infer- 
ence that  a  contract  for  the  infant's  necessaries  is  sanctioned 
by  the  father ;  so  zealous  is  the  court  to  enforce  a  moral  obli- 
gation wherever  it  can.  English  authority  to  the  same  effect 
is  not  equally  pointed ;  3  but  the  American  rule  is  certainly 
humane  and  liberal  in  this  respect.  Thus,  the  father  is  held 
bound  for  necessaries,  where  he  knows  the  circumstances,  and 
makes  no  objection.^  And  for  the  expenses  of  education  and 
maintenance  furnished  on  his  general  consent,  and  in  his 
negligence.^     So,  too,  being  liable  once  to  a  third  person,  the 


1  McMillen  v.  Lee,  78  111.  443  ;  Free-  »  Blackburn  v.  Mackey,  1  Car.  & 
man  v.  Robinson,  38  N.  J.  L.  383;  Tom-  P.  1 ;  Law  v.  Wilkin,  6  Ad.  &  El.  781 ; 
kins  V.  Tonikins,  3  Stockt.  517.  As  to  cases  of  doubtful  legal  authority.  See 
the   wife's   authority  to  bind  her  bus-  Macphers.  Inf.  514,  515. 

band   for   the  child's   necessaries,    see  ^  Swain  y.  Tyler, '26  Vt.  9;  Thayer 

Schonl.  Hiis.  &  Wife,  §101;  s"pr«,§  61.  v.   White,  12    Met.    343;    Fowlkes   v. 

One  who  encourages  wife  and  child  to  Baker,  29    Tex.    135.     As    where  he 

live  apart  from  the  husband  and  father  knew   that   another   was  boarding  his 

is   the  less  entitled  to   recover  for  the  minor  child  with  expectation  of  reward, 

necessaries    of    either.     Schnuckle    v.  Clark    v.    Clark,   46    Conn.    580.     Or 

Bierman,  89  III.  454.  upon  written  agreement   with  his   di- 

2  Mortimore  i:  Wright,  6  M.  &  W.  vorced  wife,  who  retains  the  children. 
482.  And  see  Shelton  r.  Springett,  11  Courtriglit  v.  Courtriglit,  40  Mich.  633. 
C.  B  4-52;  20  E.  L.  &  Eq.  281;  Sea-  5  Thompson  v.  Dorsey,  4  Md.  Ch. 
borne  v.  Maddy,  9  Car.  &  P.  497.  149. 

333 


§  241  THE   DOMESTIC   RELATIONS.  [PART    III. 

father  may  be  held  liable  afterwards  by  implication,  unless  his 
revocation  is  made  clear  and  consistently  adhered  to.^  Doubt- 
less any  father  may  contract  for  supplies,  necessary  or 
unnecessary,  on  his  child's  account,  if  he  choose  to.^ 

Yet  the  rule  of  principal  and  agent  is  to  be  reasonably  en- 
forced ;  and  in  all  cases  where  there  appears  neither  palpable 
moral  delinquencj^  on  the  part  of  the  parent,  nor  evidence  of 
authority  actually  conferred  upon  his  son,  nor  a  contract  by 
the  parent  himself  or  his  other  agents,  the  parent  cannot  be 
held  liable  for  the  general  contracts  of  the  child.  A  condi- 
tional offer  to  pay  for  goods  ordered  of  a  stranger  by  the 
child  must  have  been  clearly  accepted  in  order  to  constitute 
such  ratification  as  will  bind  the  parent  "who  makes  it.^  And 
in  numerous  instances  have  courts  refused  to  make  the  father 
liable  on  the  ground  of  an  implied  agency  to  the  child.'*  So 
where  a  child  has  attained  full  age,  the  presumption  is  that  he 
will  bind  himself  by  his  own  contracts.  Under  the  latter 
circumstances  a  mere  request  to  furnish  necessaries  does  not 
bind  the  father,  though  the  son  be  living  with  him  ;  while  it 
is  very  clear  that  the  father  may  even  thus  bind  himself  by 
his  own  independent  promise.^ 

Whenever  a  minor  son  or  daughter  has  left  the  father's 
home,  the  cause  should  be  ascertained  ;  for  the  disobedience 
of  children  is  not  to  be  encouraged  in  any  event.^  Under  the 
most  favorable  aspect  of  the  infant's  right  to  bind  his  father 
as  agent,  a  third  person  furnishing  goods  must  take  notice,  at 
his  peril,  of  what  is  necessary  for  the  infant  according  to  his 
precise  situation."     And  the  oral  promise  of  a  father  to  pay  a 

1  Plotts  V.  Rosebury,  4  Dutch.  146 ;  Raymond  v.  Loyl,  10  Barb.  483 ;  Bush- 
Murphy  V.  Ottenheimer,  84  111.  39.  nell  v.  Bishop  Hill  Colony,  28  111.  204. 
And  see  Deane  v.  Annis,  14  Me.  26.  See  Loomis  v.  Newhall,  15  Pick.  159. 
Notice  to  a  third  person  may  be  waived  ^  Boyd  v.  Sappington,  4  Watts,  247 ; 
afterwards  by  the  parent's  acts.  Bailey  Patton  ?•.  Hassinger,  69  Penn.  St.  311. 
V.  King,  41  Conn.  365.  And  see  Mills  v.  Wyman,  3  Pick.  207  ; 

2  Bryan  v.  Jackson,  4  Conn.  288.  Wood  v.  Gills,  Coxe,  449;  Norris  v. 
And  see  Brown  v.  Deloach,  28  Ga.  Dodge's  Adm'r,  23  Ind.  190;  Kernodle 
486;  Deane  v.  Annis,  14  Me.  26  ;  Har-  v.  Caldwell,  46  Ind.  153. 

per  V.  Lemon,  38  Ga.  227.  s  Raymond  v.   Loyl,  10  Barb.  483  ; 

3  Andrews  y.  Garrett,  6C.  B.  n.  s.  Angel  v.  McLellan,  16  Mass.  28; 
262.  Weeks  v.  Merrow,  40  Me.  151. 

4  Eitel  V.  Walter,  2  Bradf.  Sur.  287 ;  ^  Van  Valkenburgh  v.  Watson,  13 

334 


CHAP.  III.]  EIGHTS   OF   PARENTS.  §  244 

debt  of  his  child  not  incurred  for  necessaries,  in  consideration 
of  the  creditors  forbearing  to  sue  the  child  must  be  treated  as 
a  promise  to  pay  the  debt  of  another,  and  hence,  under  the 
statute  of  frauds,  not  enforceable.^ 

§  242.  Duty  of  Providing  a  Trade  or  Profession.  —  The 
parent's  duty,  according  to  some  authorities,  also  extends  to 
providing  the  children  with  a  profession  or  trade  as  well  as  a 
suitable  education.  How  far  the  duty  of  competent  pro- 
vision extends,  must  depend  upon  the  condition  and  circum- 
stances of  the  father.  Kent  observes  that  this  duty  is  not 
susceptible  of  municipal  regulations,  and  is  usually  left  to  the 
dictates  of  reason  and  natural  affection.^ 


CHAPTER  in. 

THE  EIGHTS   OF   PAEENTS. 

§  243.  Foundation  of  Parental  Rights.  —  The  rights  of  pa- 
rents result  from  their  duties,  being  given  them  by  law  partly 
to  aid  in  the  fulfilment  of  their  obligations,  and  partly  by 
way  of  recompense.^  As  they  are  bound  to  maintain  and 
educate,  the  law  has  given  them  certain  authorit}^  over  their 
children,  and  in  the  support  of  that  authority  a  right  to  the 
exercise  of  such  discipline  as  may  be  requisite  for  the  dis- 
charge of  their  important  trust.  This  is  the  true  foundation 
of  parental  power.'^ 

§  244.  Parental  Right ;  Chastisement ;  Indictment  for  Cruelty, 
&o. —  Some  of  the  ancient  nations  carried  the  parental  au- 


Johns.  480 ;   Gotts  v.  Clark,  78  111.  229.  This  rule  of  agency  is   sometimes 

Cf.  Murphy  v.  Ottenheimer,  84  111.  39.  allowed  to  operate  for  the  parent's  own 

1  Dexter  v.  Blanchard,   11    Allen,  benefit  as  against  a  third  party;  the 

365.     Goods  being   sold  to  the  minor  child  who  could  not  bind  himself  being 

without  the  father's  knowledge,  order,  treated  as  the  parents  agent.     DarUng 

or  consent,  his  subsequent  ])romise  to  v.  Noj'es,  32  Iowa,  96. 

pay  therefor  is  without  binding   con-  ^  2  Kent  Com.  202. 

sideration.     Freeman  v.  Robinson,   38  ^  I  Bl.  Com.  452. 

N.  J.  L.  383.  *  2  Kent  Com.  203. 

335 


§  244  THE  DOMESTIC   RELATIONS.  [PART   III. 

thority  bej'ond  all  natural  limits.  The  Persians,  Egyptians, 
Greeks,  Gauls,  and  Romans  tolerated  infanticide.  Under  the 
ancient  Roman  laws  the  father  had  the  power  of  life  and 
death  over  his  children  :  on  the  principle  that  he  who  gave 
had  also  the  power  to  take  away  ;  ^  and  thus  did  law  attribute 
to  man  those  functions  which  belong  only  to  the  Supreme 
Being.  This  power  of  the  father  was  toned  down  in  subse- 
quent constitutions,  and  in  the  time  of  the  Emperor  Hadrian 
the  wiser  maxim  prevailed,  "  Patria  potestas  in  jjietate  debet, 
71071  in  atrocitate  coyisistere  ;  "  for  which  reason  a  father  was 
banished  who  had  killed  his  son.  The  Emperor  Constantine 
made  the  crime  capital  as  to  adult  children  ;  and  infanticide 
was  under  Valentinian  and  Valens  punishable  by  death. 
Thus  was  the  doctrine  of  paternal  supremacy  gradually  re- 
duced, though  at  the  civil  law  never  wholly  abandoned.^ 

The  common  law,  far  more  discreet,  gives  the  parent  only 
a  moderate  degree  of  authority  over  his  child's  person,  which 
authority  relaxes  as  the  child  grows  older.  With  the  pro- 
gress of  refinement,  parents  have  learned  to  enforce  obedience 
by  kindness  rather  than  severity  ;  and  although  the  courts  are 
reluctant  to  interfere  in  matters  of  family  discipline,  they  will 
discountenance  every  species  of  cruelty  which  goes  by  the 
name  of  parental  rule.  The  common  law  gives  the  right  of 
moderate  correction  of  the  child  in  a  reasonable  manner: 
"for,"  it  is  said,  "this  is  for  the  benefit  of  his  education."  ^ 
But  at  the  same  time  the  parent  must  not  exceed  the  bounds 
of  moderation,  and  inflict  cruel  and  merciless  punishment ; 
for  if  he  do,  he  is  liable  to  be  punished  by  indictment.  And 
he  may  be  foimd  guilty  of  manslaughter,  or  even  murder, 
imder  gross  circumstances.*  Thus,  where  a  father  put  his 
child,  a  blind  and  helpless  boy,  in  a  cold  and  damp  cellar, 
without  fire,  during  several  days  in  midwinter,  giving  as  his 

1  Cod.  8,  47,  10  ;  2  Bl.  Com.  452.  correction.     Gorman  v.  State,  42  Tex, 

2  1  Bl.  Com.  4.52 ;  2  Kent  Com.  204;  221;  State  v.  Alforrl.  68  N.  C.  322. 
1  Heinec.  Antiq.  Rom.  Jnr.  9  ;  Dr.  Tay-  And  see,  as  to  tlie  analogous  case  of  a 
lor  Civ.  Law,  403-406;  Forsj'tli  Cus-  school  teacher,  State  r.  Burton,  45  Wia. 
tody,  3.  150 ;  Danenhoffer  v.  State,  69  Ind.  295. 

3  1  Hawk.  P.  C.  130;  1  Bl.  Com.  *  1  Russ.  Crimes,  Grea.  ed.  490; 
452.  One  In  locojuiimtis,  as  a  stepfather  Regina  v.  Edwards,  8  Car.  &  P.  611 ;  2 
may  become,  has  the  right  of  moderate  Bish.  Crira.  Law,  §  714. 

336 


CHAP.  III.]  RIGHTS    OF   PARENTS.  §  245 

only  excuse  that  the  boy  was  covered  with  vermin,  he  was 
rightly  held  subject  to  indictment  and  punishment  for  such 
wanton  cruelty. ^ 

So  may  a  parent  at  the  common  law  be  indicted  for  expos- 
ure and  neglect  of  his  children  ;  and  the  heinousness  of  the 
offence  depends  in  a  great  measure  upon  the  proof  of  simple 
negligence  or  wilful  cruelty.  The  parent,  too,  who  suffers  his 
little  child  to  starve  to  death,  commits  murder.^  But  the 
child's  tenderness  of  age  and  helplessness  are  elements  in  such 
cases  ;  and  when  children  grow  up  they  are  presumed  to  pro- 
vide for  their  urgent  wants. 

§  245.  Parental  Custody ;  Common-law  Rule ;  English  Doc- 
trine. —  The  topic  of  parental  custody  is  one  of  absorbing  im- 
portance in  England  and  America  ;  and  its  principles  have 
received  the  most  ample  discussion  in  the  courts  of  both 
countries.  The  fundamental  principle  of  the  common  law 
was  that  the  father  possessed  the  paramount  right  to  the  cus- 
tody and  control  of  his  minor  children,  and  to  superintend 
their  education  and  nurture.'^  The  mother,  as  such,  had  little 
or  no  authority  in  the  premises.'*  The  Roman  law  enjoined 
upon  children  the  duty  of  showing  due  reverence  and  respect 
to  the  mother,  and  punished  any  flagrant  instance  of  the  want 
of  it ;  but  beyond  this  it  seems  to  have  recognized  no  claim 
on  her  part.^  Indeed,  the  father  is  permitted  by  Anglo- 
Saxon  policy  to  perpetuate  his  authority  beyond  his  own  life  ; 
for  he  may  constitute  a  testamentary  guardian  of  his  infant 
children.*^ 

In  case  there  is  no  father,  then  the  mother  is  entitled  to 
the  custody  of  the  children ;  supposing,  of  course,  the  rights 

1  Fletclier  v.  People,  52  111.  395;  3  ^.r  parte  Hopkins,  3  P.  Wms.  151 ; 
Johnson  v.  State,  2  Humph.  283.  2  Story  Eq.  Juris.  §§  1341, 1842;  2  Kent 

2  4  Bl.  Com.  182, 183;  2  Bish.  Crim.  Com.  205  ;  Forsyth  Custody,  10  ;  Peo- 
Law,  §§  688,  712;  Kegina  v.  White,  pie  y.  Ohnstead,  27  Barb.  9,  and  cases 
L.  R.  1  C.  C.311.  Wilfully  permitting  cited  ;  Ex  parte  M'Clellan,  1  Dovvl.  P. 
a  child's  life  to  he  endangered  for  want  C.  34. 

of  proper  food  or   medical  treatment,  *  See  1  Bl.  Com.  453. 

legislation  sometimes  makes  an  indict-  ^  Cod.  8,  tit.  47,  §  4 ;  Forsyth  Cus- 

able  offence  as  against  a  parent  or  one  tody,  5. 

in  his  stead.    Cowley  v.  People,  83  N.  Y.  ^  gtat.  12  Car.  II.  c.  24,  re-enacted  in 

404.  most  of  tlie  United  States.     See  Guar- 
dian and  Ward,  hifra. 

22  337 


§  246  THE   DOMESTIC   RELATIONS.  [PART   III. 

of  no  testamentary  guardian  intervene.^  She  has,  as  natural 
guardian,  a  right  to  the  custody  of  the  person  and  care  of  the 
education  of  her  children ;  "  and  this  in  all  countries,"  said 
Lord  Hardwicke,  "  where  the  laws  do  not  break  in."  ^  The 
priority  of  the  surviving  mother's  right  to  custody  is  fre- 
quentl}-  a  matter  of  statute  regulation  ;2  but  her  absolute 
right  on  remarriage  is  not  so  clearly  recognized.  Her  claims, 
as  we  shall  see  hereafter,  may  conflict  with  those  of  a  guar- 
dian. 

§  246.  Chancery  Jurisdiction  in  Custody ;  Common  Law  over- 
ruled.—  Were  these  invariable  rules,  uncontrolled  by  the 
courts,  unchanged  by  statute,  this  common-law  doctrine  of 
custody  would  be  as  simple  of  application  as  unjust.  It  is 
neither.  And  the  courts  of  chancery,  in  assuming  a  liberal 
jurisdiction  over  the  persons  and  estates  of  infants,  soon  made 
the  claims  of  justice  override  all  considerations  of  parental  or 
rather  paternal  dominion,  at  the  common  law.*  Thus  Lord 
Thurlow,  in  a  case  where  it  appeared  that  the  father's  affairs 
were  embarrassed,  that  he  was  an  outlaw  and  resided  abroad, 
that  his  son,  an  infant,  had  considerable  estate,  and  that  the 
mother  lived  apart  from  her  husband  and  principally  directed 
the  child's  education,  restrained  the  father  from  interfering 
without  the  consent  of  two  persons  nominated  for  that  pur- 
pose ;  and  with  reference  to  the  objection  that  the  court  had 
no  jurisdiction,  he  added  that  he  knew  there  was  such  a  no- 
tion, but  he  was  of  opinion  that  the  court  had  arms  long 
enough  to  reach  such  a  case  and  to  prevent  a  father  from 
prejudicing  the  health  or  future  prospects  of  the  child ;  and 
he  signified  that  he  should  act  accordingly .^  But  the  leading 
case  on  this  subject  is  that  of  Wellesley  v.  The  Duke  of  Beau- 
fort^ which  went  on  appeal  from  Lord  Eldon  to  the  House  of 

1  See  Guardian  and  Ward,  infra.  c.  109,  §  4 ;  State  v.  Scott,  10  Fost.  274; 

2  Villareal  r.  Meilisli,  2  Swanst.  536  ;     Striplin  v.  Ware,  26  Ala.  87.     See  Hey- 
Forsyth  Custody,  11,109  ;  2  Kent  Com.     ward  v.  Cuthbert,  4  Desaus.  445. 

506;  People  v.  Wilcox,  22  Barb.  178 ;  *  2  Story  Eq.  Juris.  §1341.     And 

Osborn    v.  Allen,  2   Dutch.   388.      So  see  Butler  v.  Freeman,  Ambl.  302. 
wiiere  the  father  is  sentenced  to  trans-  ^  Creuze   v.    Hunter,  2  Bro.   C.  C. 

portation.     Ex  parte   Bailey,  6  Dowl.  499,  n. ;  2  Cox,  242.     And  see  Whitfield 

P.  C.  31 1.  V.  Hales,  12  Ves.  492. 

3  2  &  3  Vict.  c.  54  ;  Mass.  Gen.  Sts. 

338 


CHAP.  III.] 


RIGHTS    OF    PARP:NTS. 


§246 


Lords  ;  and  in  which  the  learned  Lord  Chancellor's  judgment 
Avas  unanimously  affirmed.^ 

But  the  result  of  the  English  authorities  is  to  establish  the 
principle,  independently  of  statutory  provisions,  that  the  Court 
of  Chancery  Avill  interfere  to  disturb  the  paternal  rights  only 
in  cases  of  a  father's  gross  misconduct;  such  misconduct 
seeming,  however,  to  be  regarded  with  reference  rather  to  the 
interests  of  the  child  than  the  moral  delinquency  of  the  pa- 
rent. If  the  father  has  so  conducted  himself  that  it  will  not 
be  for  the  benefit  of  the  infants  that  they  should  be  delivered 
to  him,  or  if  their  being  with  him  will  injuriously  affect  their 
happiness,  or  if  they  cannot  associate  with  him  without  moral 
contamination,  or  if,  because  they  associate  with  him,  other 
persons  Avill  shun  their  society,  the  court  will  award  the  cus- 
tody to  another.^  It  is  held  that  chancery  has  nothing  to  do 
with  the  fact  of  the  father's  adultery,  unless  he  brings  the 
child  into  contact  with  the  woman.^  But  unnatural  crime  is 
otherwise  regarded.*  Atheism,  blasphemy,  irreligion,  call  for 
interference,  when  the  minds  of  young  children  may  be  there- 


1  2  Russ.  1 ;  "Wellesley  v.  Wellesley, 
2  Bligli  N.  s.  124. 

In  tliis  latter  case  children  were 
taken  from  a  father  who  was  living  in 
adultery.  In  the  course  of  his  elabo- 
rate judgment  in  this  case,  Lord  Eldon 
cited  with  approbation  a  dictum  of  Lord 
Macclesfield,  to  the  effect  that  where 
there  is  reasonable  ground  to  believe 
that  the  children  would  not  be  properly 
treated,  the  court  would  interfere  with- 
out waiting  further,  upon  the  principle 
th^t  preventing  justice  was  better  than 
punishimj  justice.  Duke  of  Beaufort  v. 
Berty,  1  P.  Wms.  703,  cited  in  Welles- 
ley (".  Duke  of  Beaufort,  supra. 

The  evidence  showed  that  the  con- 
duct of  the  father  was  of  the  most 
profligate  and  immoral  description.  It 
appeared  that  he  had  ill-treated  his 
wife,  continued  his  adulterous  connec- 
tion to  the  time  of  judicial  proceedings, 
and  in  his  letters  to  his  young  children 
had  frequently  encouraged  them  in 
habits  of  swearing  and  keeping  low 
company.     Lord    Eedesdale,    in    the 


course  of  his  opinion  before  the  House 
of  Lords,  repudiated  emphatically  the 
insinuation  that  paternal  power  is  to  be 
considered  more  than  a  trust.  "  Look 
at  all  the  elementary  writings  on  the 
subject,"  he  adds :  "  they  say  that  a 
fatlier  is  entrusted  with  the  care  of  his 
children  ;  tiiat  he  is  entrusted  with  it 
for  this  reason,  because  it  is  supposed 
his  natural  affection  would  make  him 
the  most  proper  person  to  discharge  the 
trust."  VVellesley  v.  Wellesley,  2  Bligh, 
N.  s.  141  (1828). 

2  Anonymous,  11  E.  L.  &  Eq.  281 ; 
s.  c.  2  Sim.  N.  s.  54  ;  Forsyth  Custody, 
52 ;  De  Manneville  v.  De  Manneville, 
10  Ves.  52 ;  Warde  v.  Warde,  2  Phil. 
78G. 

3  Ball  V.  Ball,  2  Sim.  35;  Lord  El- 
don, n.  6  to  Lyons  v.  Blenkin,  Jac.  254. 
The  English  divorce  act  indicates  the 
peculiar  views  prevalent  in  that  coun- 
try as  to  adultery  committed  by  a  mar- 
ried man.     Schoul.  Hus.  &  Wife,  §  506. 

*  Anonymous,  11  E.  L.  &  Eq.  281 ; 
s.  c.  2  Sim.  N.  s.  34. 

339 


§  246  THE   DOMESTIC    KELATIONS.  [PAKT  III. 

by  poisoned  and  corrupted  ;  although  in  matters  of  purely 
religious  belief  there  is  of  course  much  difficulty  in  defining 
that  degree  of  latitude  which  should  be  allowed.  Says  Lord 
Eld  on,  "  With  the  religious  tenets  of  either  party  I  have 
nothing  to  do,  except  so  far  as  the  law  of  the  country  calls 
upon  me  to  look  on  some  religious  opinions  as  dangerous  to 
society."  ^ 

Mere  poverty  or  insolvency  does  not  furnish  an  adequate 
ground  for  depriving  the  father  of  his  children  ;  not  even 
though  a  fund  is  offered  for  their  benefit,  conditioned  upon 
the  surrender  of  their  custody .^  Yet  so  solicitous  is  chancery 
for  the  welfare  of  its  wards,  that  it  seems  indisposed  to  sacri- 
fice their  large  pecuniary  opportunities  to  the  caprice  of  the 
natural  protector.  Thus  far  has  chancery  carried  its  excep- 
tion, that  if  property  be  settled  upon  an  infant,  upon  condi- 
tion that  the  father  surrenders  his  right  to  the  custody  of  its 
person,  and  he,  by  acquiescing  for  a  time,  and  permitting  the 
child  to  be  educated  in  a  manner  conformably  to  the  terms  of 
the  gift  or  bequest,  encourages  corresponding  expectations, 
he  will  not  be  allowed  to  disappoint  them  afterwards  by 
claiming  possession  of  the  infant.  He  has  in  such  a  case 
"  waived  his  parental  right."  ^ 

1  Lyons  v.  Blenkin,  Jac.  256.  See  Forsyth  Custody,  17,  54;  Tn  re  Pul- 
supra,  pp.  295,  820,  notes.  brook,  11  Jur.  185 ;  In  re  Fynn,  2  T>e  G. 

2  Ex  parte  Hopkins,  31'.  Wms.  152;  457  ;  s.  c.  12  Jur.  713;  Ee.x  v.  Green- 
Colston  V.  Morris,  Jac.  257,  n.  11 ;  hili,  4  Ad.  &  El.  624.  Lord  Mansfield 
Macpliers.  Inf.  142,  143;  Forsyth  Cus-  once  said  that  the  common-law  court  is 
tody,  37  ;  Earl  &  Countess  of  West-  not  bound  to  deliver  an  infant,  when 
meath,  Jac.  251,  «.  c.  But  see  Ex  parte  set  free  from  illegal  restraint,  over  to 
Mountfort,  15  Ves.  445.  anybody,  nor  to  give  it  any  privilege. 

3  Per  Lord  Hardwicke,  Blake  v.  Rex  i'.  Delarel,  3  Burr.  1436 ;  1  W.  Bl. 
Leigh,  Ambl.  307  ;  Powell  v.  Cleaver,  2  409.  But  the  later  English  rule  is,  that 
Bro.  C.  C.  499;  Creuze  v.  Hunter,  2  where  a  clear  right  to  the  custody  is 
Cox,  242 ;  Forsyth  Custody,  38,  53  ;  shown  to  exist  in  any  one,  the  court 
Lyons  v.  Blenkin,  Jac.  254,  262.  has  no  choice,  but  must  order  the  in- 

The  English  courts  of  common  law  fant  to  be  delivered  up  to  him.     Rex  v. 

likewise  interfere  in  questions  relating  Isley,  5  Ad.  &  El.  441.     This  jurisdic- 

to  the  custody  of  infants   by  writ  of  tion  is  less  ample  than  that  of  the  chan- 

haheas  corpus,  which,  in  general,  lies  to  eery  courts,  to  whose  authority  it  must 

bring  up  persons  who  are  in  custody,  be  considered  subservient.     See  Wel- 

and  who  are  alleged  to  be  subject  to  lesley  v.  Wellesley,  2  Bligh,  n  s.  136, 

illegal  restraint.     Macpliers.  Inf.  152;  142;  .Ear  jaarte  Skinner,  9  Moore,  278. 
Ex  parte  Glover,  4   Dowl.  P.  C.  293 ; 

340 


CHAP.  III.]  EIGHTS    OF    PARENTS.  §  248 

§  247.  Custody  ;  English  Rule  ;  Statute.  —  The  English  rule, 
up  to  the  year  1839,  was  therefore  that  the  father  is  entitled 
to  the  sole  custody  of  his  infant  child  ;  controllable,  in  general, 
by  the  court  only  in  case  of  very  gross  misconduct,  injurious 
to  the  child.  Such  a  state  of  things  was  unjust,  since  it  took 
little  account  of  the  mother's  claims  or  feelings  in  a  matter 
which  most  deeply  interested  her.  This  finally  led  to  the 
passage  of  Stat.  2  &  3  Vict.  c.  54,  known  as  Justice  Tal- 
fourd's  Act,  which  introduced  important  changes  into  the 
law  of  parental  custody,^  but  does  not  appear  to  have  inter-, 
fered  with  the  father's  right  of  custody  further  than  to  intro- 
duce new  elements  and  considerations  under  which  that  right 
is  to  be  exercised.  This  act  proceeds  upon  three  grounds : 
First,  it  assumes  and  proceeds  upon  the  existence  of  the 
paternal  right.  Secondly,  it  connects  the  paternal  right  with 
the  marital  duty,  and  imposes  the  marital  duty  as  the  condi- 
tion of  recognizing  the  paternal  right.  Thii'dly,  the  act  re- 
gards the  interest  of  the  child.^  If  the  two  considerations 
of  marital  duty  to  be  observed  towards  the  wife  and  of  the 
interest  of  tlie  child  can  be  attained  consistently  with  the 
father's  retaining  the  custody  of  the  child,  his  common-law 
paternal  right  will  not  be  disturbed  ;  otherwise  it  may  be.^ 

§  248.  Parental  Custody  ;  American  Rule.  —  In  this  country 
the  doctrine  is  universal  that  the  courts  of  justice  may,  in 
their  sound  discretion,  and  when  the  morals  or  safety  or  in- 
terests of  the  children  strongly  require  it,  withdraw  their 
custody  from  the  father  and  confer  it  upon  the  mother,  or 
take  the  children  from  both  parents  and  place  the  care  and 
custody  of  them  elsewhere.^  The  rule  as  to  legal  preference 
is  essentially  that  of  the  common  law,  with,  however,  an  in- 
creasing liberality  in  favor  of  the  mother,  strengthened,  in 

1  Ex  parte  Woodward,  17  Jur  56,  custody  of  infants  convicted  of  felony. 
Forsyth  Custody,  137.  See  Forsyth.  Under  Stat,  30  &  37  Vict.  c.  12,  the  cus- 
ib.  139,  140  tody  of  a  cliild   three  years   old    was 

2  Per  Turner,  V.  C.,  in  Et  parte  given  to  the  mother,  her  husband 
Woodward,  17  E.  L.  &  Eq.  77  ,  17  Jur  having  deserted  her.  In  re  Taylor,  4 
56.  Ch.  D  157. 

3  Ih.  See  also  Warde  v  Warde,  2  *  2  Kent  Com.  205,  and  cases  cited; 
Ph.  787.     Stat.  3  &  4   Vict    c.  90,  em-  1  Story  Eq  Juris.  §  lo4L 

powers  chancery  to  assign  the  care  and 

341 


§  248  THE   DOMESTIC   RELATIONS.  [PART   III. 

no  slight  degree,  by  positive  legislation.  Our  rule  of  pro- 
cedure is  somewhat  different  from  that  noticeable  in  the 
English  system.  For  though  sometimes  the  right  of  cus- 
tody is  to  be  determined  by  habeas  corpus^  and  sometimes  by 
proceedings  in  equity,  while  very  frequently  incidental  to 
divorce  suits  ;  in  any  case,  the  circumstances  will  be  fully 
considered  b}""  the  court,  and  a  decision  rendered  on  general 
principles  of  justice. 

The  father  has,  in  America,  the  paramount  right  of  custody 
independently  of  all  statutes  to  the  contrary. ^  But  this  para- 
mount right  may  be  forfeited  by  his  misconduct.  Nor  do  the 
decisions  in  our  courts  go  to  the  extent  of  the  English  rule  in 
sustaining  the  husband  against  his  wife,  despite  his  immoral 
behavior  or  marital  misconduct.  "It  is  an  entire  mistake," 
says  Judge  Story,  "  to  suppose  that  the  court  is  bound  to  de- 
liver over  the  infant  to  its  father,  or  that  the  latter  has  an 
absolute  vested  right  in  the  custody."^  The  cardinal  prin- 
ciple relative  to  such  matters  is  to  regard  the  benefit  of  the 
infant;  to  make  the  welfare  of  the  children  paramount  to  the 
claims  of  either  parent.^  While  States  differ  as  to  the  extent 
of  the  father's  claims  in  preference  to  the  mother,  in  this  lat- 
ter principle  they  all  agree  ;  and  judicial  precedents,  judicial 
dicta,  and  legislative  enactments  all  lead  to  one  and  the  same 
irresistible  conclusion.  The  primar}-  object  of  the  American 
decisions  is  then  to  secure  the  welfare  of  the  child,  and  not 
the  special  claims  of  one  or  the  otlier  parent.  The  English 
case  of  Rex  v.  G-reenhill,'^  which,  in  effect  enabling  the  father 
to  take  his  children  from  his  blameless  wife  and  place  them 
in  the  charge  of  a  woman  with  whom  he  cohabited,  hastened 
the  passage  of  Justice  Talfourd's  Act,'^  has  been  repeatedly 

1  2  Kent  Com.  205 ;  People  v.  Mer-  -  United  States  r.  Green,  3  ^lason, 

cein,  3  Hill,  399 ;  People  ;;.  Olmstead,  382. 

27  Barb.  9;  Miner  v.  Miner,  11  111.  43;  ^  Case- of  Waldron,  13  Johns.  418; 

Cole  V.  Cole,  23  Iowa,  433  ;  Heiison  v.  People  v.  Mercein,  3  Hill.  30'j ;  Ex  parte 

Walts,  40  Ind.  170  ;  Rush  v.  Vanvacter,  Schunipert,  G  Ricli.  344 ;  Wood  v.  Wood, 

9  W.  Va.  tiOO  ;  State  v.  Baird,  6  C  E.  3  Ala.  756  ;  Gishwiler  v.  Dodez,  4  Ohio 

Green,  384;   Smith  Pet'r,   13  111.  138.  St  615. 

But  see  Gishwiler  v.  Dodez,  4  Ohio  St.  ■*  4  Ad.  &  El.  024. 

615.  5  Forsyth    Custodj',  09,  137.     Lord 

Denuiau,  who  had  sat  in  this  case,  de- 

342 


CHAP.  III.]  EIGHTS    OF   PARENTS.  §  249 

condemned  in  the  United  States.  Indeed,  our  courts  have  re- 
quired no  such  statute  to  prevent  them  from  taking  the  cus- 
tody of  any  child  from  one  whose  parental  influence,  by 
reason  of  immoral  character  or  otherwise,  is  found  to  be  inju- 
rious to  the  child's  welfare ;  if  a  father  wrongs  his  wife,  it  is 
readily  presumed  that  he  will  wrong  his  cliildren  likewise  ; 
and  neither  parent  is  secure  in  a  child's  custody,  if  custody 
with  either  is  palpably  against  the  child's  own  welfare.^  The 
American  rule  is  not,  however,  one  of  fixed  and  determined 
principles.  Much  must  be  left  to  the  peculiar  surroundings 
of  each  case.^ 

Proceedings  as  to  the  custody  of  children  are  usually,  in 
this  country  conducted  by  writ  of  habeas  corpus.  And  the 
settled  rule  with  us  is  that,  while  the  court  is  bound  to  free 
the  person  from  illegal  restraint,  it  is  not  bound  to  decide 
who  is  entitled  to  the  guardianship,  or  to  deliver  infants  to 
the  custody  of  any  particular  person ;  but  this  may  be  done 
whenever  deemed  proper.  In  other  words,  it  is  in  the  sound 
discretion  of  the  court  to  alter  the  custody  of  the  infants,  or 
not.3 

§  249.  Custody  under  Divorce  and  other  Statutes.  —  Our 
divorce  jurisprudence,  being,  until  recently,  quite  different 
from  that  of  England,  further  opportunity  has  been  furnished 
for  a  departure  from  the  common-law  rules  which  favor  the 
paternal  right  of  custody.  The  same  tribunal  which  hears 
the  divorce  cause  has  power  to  direct  with  whom  of  the 
parties,  or  what  third  person,  the  children  shall  be.*     Like 

clared  that  there  was  not  one  of  the  Case  of  Waldron,  13  Johns.  418 ;  State 

court  who  had  not  felt  ashamed  at  the  v.    Smith,   6    Me.   4G2;    State    ex    rel. 

state  of  the  law.     See  ib.  G9  n.  v.   Paine,   4   Humph.    523 ;    Conimon- 

1  Bedell  v.  Bedell,  1  Johns.  Ch.  wealth  v.  Briggs,  16  Pick.  203 ;  Ward 
604;  Barrere  v.  Barrere,  4  Johns.  Ch.  v.  Roper,  7  Humph.  Ill;  Foster  v. 
187,  197;  2  Bish.  Mar.  &  Div.  5th  ed.  Alston,  6  How.  (Miss.)  406;  Stigall  v. 
§  532;  Ex  parte  Schumpert,  6  Rich.  Turney,  2  Zabr.  286  ;  Mercein  r.  People, 
344  ;  People  v.  Chegaray,  18  Wend.  637  ;  25  Wend.  64  ;  State  v.  King,  1  Ga. 
Garner  v.  Gordon,  41  Ind.  92  ;  Corrie  v.  Dec.  93  ;  State  v.  Banks,  25  Ind.  495; 
Corrie,  42  Mich.  509.  Bennet?^  Bennet,  2Beasl.  114  ;  Ex  parte 

2  Cook  V.  Cook,  1  Barb.  Ch.  639;  Williams,  11  Rich,  452;  State  ;;.  Rich- 
Dailey  v.   Dailey,  Wright,  514;  Com-  ardson,  40  N.  H.  272. 

monwealth  v.  Addicks,  2  S.  &  R.  174.  ^  2  Bish.  Mar.  &  Div.  5th  ed.  §§  526, 

3  Commonwealth  v.  Addicks,  5  Binn.     530. 
520;  Armstrong  v.  Stone,  9  Gratt.  102; 

343 


§249 


THE   DOMESTIC    RELATIONS.  [PART   III. 


powers  are  now  conferred  upon  the  English  matrimonial 
court  by  recent  statutes;  and  tlie  cliild's  custody  may  be 
given  to  a  parent  or  a  third  person  ;  generally  to  the  inno- 
cent parent,  though  with  due  regard  to  the  child's  welfare ; 
and,  in  suitable  cases,  with  a  right  of  access  to  the  parent 
or  parents  deprived  of  custody. ^  Where  the  custody  of  a 
child  is  the  subject  of  chancery  or  divorce  proceedings,  the 
court  will  often  be  justified  in  making  temporary  arrange- 
ments for  his  custody .2 


1  Stats.  20  &  21  Vict.  c.  85,  §  35 ;  22 
&  23  Vict.  c.  (il,  §  4.  See  Alirenfeldt 
V.  Alirenfeldt,  1  Hoff.  Ch.  497 ;  Spratt 
V.  Spratt,  1  Swab.  &  T.  215;  2  Bisli. 
Mar.  &  Div.  5tli  ed.  §§  582-544,  and 
cases  cited  ;  Bedell  v.  Bedell,  1  Joiins. 
Ch.  604  ;  Ciietwynd  v.  Chetwynd,  L.  R. 
1  P.  &  D.  39 ;  Harding  v.  Harding,  22 
Md.  337  ;  Mallinson  v.  Mallinson,  L.  K. 
1  P.  &  D.  221 ;  McBride  v.  McBride,  1 
Bush,  15 ;  Goodrich  v.  Goodricli,  44 
Ala.  670  ;  Bush  v.  Bush,  37  Ind.  164  ; 
Harvey  v.  Lane,  66  Me.  536 ;  Hill  v. 
Hill,  49  Md.  450.  The  father  is  strongly 
preferred  to  tlie  mother  where  he  ob- 
tained divorce  for  her  desertion.  Carr 
V.  Carr,  22  Gratt.  168.  See  Li  re  Tay- 
lor, 4  Ch.  D.  157.  Even  after  divorce 
with  a  decree  of  custody  to  one  parent, 
occasion  may  arise  for  separating  the 
child,  in  the  latter's  interest,  from  both 
parents,  as  concerns  custody.  D'Alton 
V.  Alton,  L.  R.  4  P.  D.  87  ;  In  re  Bort, 
25  Kan.  30G. 

2  Hutson  V.  Townsend,  6  Rich.  Eq. 
249 ;  Barnes  v.  Barnes,  L.  R.  1  P.  &  D. 
463  ;  A'e  Welch,  74  N.  Y.  299. 

Some  American  statutes  concerning 
custody  are  worthy  of  notice.  Follow- 
ing the  temper  of  the  times,  the  New 
York  legislature  of  1860  enacted  that 
"every  married  woman  is  hereby  con- 
stituted and  declared  to  be  the  joint 
guardian  of  her  children,  with  her  hus- 
band, with  equal  powers,  rights,  and 
duties  in  regard  to  them  with  her  hus- 
band." Such  a  statute,  unexplained, 
might  seem  to  do  away  altogether  with 
the  paramount  claims  of  the  husband. 
But  the  courts  appeared  disposed  to  re- 

344 


gard  the  innovation  with  Utile  favor; 
and  the  law  was  in  1862  repealed. 
People  V.  Brooks,  35  Barb.  85  ;  People 
V.  Boice,  39  Barb.  307.  In  the  former 
case  a  married  woman,  who  lived  apart 
from  her  husband,  no  misconduct  on 
his  part  being  shown,  sought  under  the 
the  new  statute  to  obtain  custody  of 
the  children.  An  earlier  statute  of 
New  York  provides  that  if  the  parents 
live  in  a  state  of  separation,  without  be- 
ing divorced,  and  without  the  fault  of 
the  wife,  the  courts  may,  on  her  applica- 
tion, award  the  custody  of  the  child  to 
the  mother.  2  N.Y.  Rev.  Sts.  148 ;  2  Kent 
Com.  205,  n. ;  People  v.  Mercein,  3  Hill, 
399.  The  discretion  thus  conferred 
upon  the  courts  is  a  judicial  one,  how- 
ever, and  is  to  be  exercised  with  due 
reference  to  the  cause  of  separation, 
and  the  conduct  and  character  of  the 
parties.  And  see  People  v.  Brooks,  supra. 
See  N.  Y.  act  1862,  c.  172,  §  6,  which 
restrains  the  father  from  binding  his 
cliild  as  apprentice,  or  parting  with  his 
control,  or  creating  a  testamentary 
guardian,  without  the  mother's  written 
assent.  Legislative  provisions  of  a 
like  tendency  are  frequently  to  be  met 
Avith  in  other  States.  Thus  in  Massa- 
chusetts, it  is  enacted  that,  pending 
divorce  controversies,  the  respective 
riglits  of  the  parents  shall,  in  the  ab- 
sence of  misconduct,  be  regarded  as 
equal,  and  that  the  happiness  and  wel- 
fare of  the  children  shall  determine  the 
custody  in  which  they  shall  he  placed. 
Mass.  Gen.  Sts.  c.  107,  §  37.  And 
under  a  still  more  recent  statute  ia 
New  Jersey,  the  court  is  to  a  certain 


CHAP.  III.]  RIGHTS    OF    PARENTS.  §  251 

§  250.  Custody  of  Minors  ;  Child's  own  Wishes.  —  It  is  some- 
times a  question,  in  proceedings  relative  to  the  custody  of 
minors,  how  far  the  child's  own  wishes  should  be  consulted. 
Where  the  object  is  simpl}-  that  of  custody,  the  rule,  though 
not  arbitrar}^,  rests  manifestly  upon  a  principle  elsewhere  often 
applied  ;  namely,  that  after  a  child  has  attained  to  years  of 
discretion  he  may  have,  in  case  of  controversy,  a  voice  in 
the  selection  of  his  own  custodian.  The  practice  is  to  give 
the  child  the  right  to  elect  where  he  will  go,  if  he  be  of  proper 
age.  If  he  be  not  of  that  age,  and  want  of  discretion  would 
only  expose  him  to  dangers,  the  court  must  make  an  order  for 
placing  him  in  custody  of  the  suitable  person. ^ 

§  2ol.  Contracts  transferring  Parental  Rights.  — It  is  held  in 
England  that  an  agreement  by  which  the  father  surrenders 
custody  of  Ins  child  is  not  binding  ;  and  that  he  is  at  liberty 
to  revoke  his  consent  afterwards,  and  obtain  the  child  by  a 
writ  of  habeas  corpus?  The  policy  of  the  rule  is  otherwise  in 
some  American  States.  Thus,  there  is  a  Massachusetts  case 
where  a  child  had  been  given  up  at  its  birth,  the  mother 
having  then  died,  to  its  grandparents,  who  kept  it  for  thir- 
teen years,  at  their  own  expense,  without  any  demand  made 
by  the  father  for  its  restoration  ;  and  under  these  circum- 
stances the  court  refused  afterwards  to  change  the  custody.^ 
The  general  doctrine  appears  to  us,  on  the  whole,  to  be  this : 

extent  deprived  of  its  discretion  in  dis-  cein,  8  Paige,  47  ;  In  re  Goodenongh,  19 

posing  of  the  custody  of  children  whose  Wis.  274  ;  llogina  v.  Clarke,  7  El.  &  B. 

parents  are  separated,  but  not  divorced ;  186  ;  State  v.  Richardson,  40  N.  H.  272 ; 

for  by  this  statute  the  custody  of  the  Spears   i-.    Snell,  74   N.   C    210.     But 

children  under  seven  years  of  age  is  according  to  Regina  v.  Howes,  3  Ell.  & 

transferred    from    the    fatlier    to    the  Ell.  3."52,  and  Mallinson  y.  Mallinson,  L. 

mother.     Bennetv  Bennct,2  Beasl.  114.  R.  1  P.  &  D.  221,  sixteen  years  is  now 

As  to  modifying  the  order  of  custody  the  limit   adopted    in    English    courts 

after  divorce,  see  Harvey  v.  Lane,  CO  within  which  the  cliild's  own  choice  as 

Me.  536.  to  custody  may  be  regarded.     See,  as 

1  Forsyth  Custody,  93,  &c. ;  Rex  v.  to  children  too  young,  Rust  v.  Vanvac- 

Greenhill,  4  Ad.  &  El.  G24.    Nine  or  ten  ter,  0  W.  Va.  GOO  ;  Henson  v.  Walts,  40 

years  of  a^e   has  been  considered  too  Ind.  170. 

young;   yet   mental   capacity    appears  2  Rggina  v.  Smith,  16  E.  L.  &  Eq. 

the  real  test ;  and  the  wishes  of  chil-  221. 

dren  less  than  fourteen  have  been  re-  3  pod  v.  Gott,  14  L.  R.  209,  before 

garded.     See  Anon,  2    Ves.  274;    Ex  Shaw,  C.J.    And  see /«  re  Goodenongh, 

parte  Hopkins,  2   P.  Wms    152;  Curtis  19  Wis.  274,  Bently  v.  Terry,  59  Ga. 

V.  Curtis,  5  Gray,  535;  People  v.  Mer-  555. 

345 


§  201  THE   DOMESTIC    RELATIONS.  [PART   III. 

that  public  policy  is  against  the  permanent  transfer  of  the 
natural  rights  of  a  parent ;  and  that  such  contracts  are  not 
to  be  specifically  enforced,  unless  in  the  admitted  exception 
of  master  and  apprentice,  to  constitute  which  relation  re- 
quires, both  in  England  and  America,  certain  formalities ; 
and  excepting,  too,  in  parts  of  the  United  States  where  the 
principles  of  legal  adoption  are  part  of  the  public  policy.^ 
American  courts  hold  fast,  nevertheless,  to  the  true  interests 
and  welfare  of  the  child.  And  hence  the  contract  of  a  j^arent 
unfit  to  have  custody  of  the  child,  which  surrenders  that 
child,  by  formal  instrument,  fair  in  its  terms,  to  a  benevolent 
institution,  for  the  purpose  of  having  the  child  brought  up  in 
a  good  family,  or  to  some  other  suitable  third  party,  has  been 
so  far  uj)held,  where  the  institution  or  person  entrusted  has 
not  failed  in  duty,  that  the  child  is  suffered  to  remain  where 
he  was  placed,  for  the  reason  that  his  welfare  requires  it, 
rather  than  be  returned  to  the  parent  who  seeks  to  recover 
custody  once  more.^  And  so  too,  often  where  a  shiftless  pa- 
rent permits  the  child  to  be  brought  up  by  other  relatives  at 
their  cost,  and  a  change  afterwards  Avould  be  unsuitable."^ 

Nor  can  the  father,  under  the  common-law  rule,  divest 
himself,  even  by  contract  with  the  mother,  of  the  custody  of 
his  children,  though   he  allows    them    to  remain   with   her 

1  See,  as  to  adoption,  s^tpra,  §  232.  virtue  of  transfer  to  liim,  may  sue  a 

2  2  Kent  Com.  205 ;  State  v.  Barrett,  third  person  for  disturbing  his  custody, 
45  N.  H.   15  ;  Dumain  v.   Gwynne,  10  in  Clark  i-.  Bayer,  32  Oliio  St.  299. 
Allen,  270  ;  Commonwealth  v.  St.  John's  ^  Drumb  v.  Keen,  47  Iowa,  435. 
Asylum,  9  Phila.  571.  If  a  father,  after  making-  an  assign- 

The  mother,   being  a  suitable  per-  ment  of  tlie  services  or  society  of  his 

son,  was  allowed  to  recover  custody,  in  minor  child,  lias  retaken  the  child  into 

Wishard  i-.  Medaris,  34  Ind.  108.     And  his   own  keeping,  the  assignee's   only 

see  Beller  r,  Jones,  22  Ark.  92.    Mayne  remedy  on  his  own  behalf  (if  any  he 

V.  Baldwin,  1  Halst.  Ch.  454;  People  v.  have)    is    by   action   on  the  contract. 

Mercein,  8  Paige  Ch.  67  ;  s.  c.  3  Hill,  Farnsworth  v.  Richardson,  35  Me.  267. 

408;  State  v.  Libbey,  44   N.    H.  321;  And  see  Commonwealth  v.  M'Keagy,  1 

State  V.    Scott,   .30   N.  H.   274,   estab-  Ashm.  248;  Lowry  r.  Button,  Wright, 

lisli  that  a  parol  transfer  of  custody  is  330.     An  adjudication  ot  the  appropri- 

insufficient.     But   this  is  rather  as  re-  ate  tribunal  on  the  question  of  the  cus- 

gards  the  parent,  than  third  parties  or  tody  of  an  infant  child,  brought  up  on 

tlie  heirs  or  kindred  of  the  parent.    As-  hahras  corpus,  may   be    pleaded   as  res 

sent  and  transfer  was,  after  long  lapse  (idjndirala.      Meroeia    v.    People,    25 

of  time,  jiresumed  in  Sword  v.  Keith,  Wend.  64, 
31  Mich.  248.     And  a  grandparent,  by 

346 


CHAP.  III.]  EIGHTS   OF   PARENTS.  §  252 

for  several  years. ^  Yet  the  rule  in  some  States  is  more  fiex- 
ible.2 

§  252.  Right  of  Parent  to  Child's  Labor  and  Services.  —  Next 
to  the  right  of  custody  of  infants  comes  tliat  of  the  value  of 
their  labor  and  services.  The  father,  says  Blackstone,  has 
the  benefit  of  his  children's  labor  while  they  live  with  him 
and  are  maintained  by  him ;  and  this  is  no  more  than  he  is 
entitled  to  from  his  apprentices  or  servants.^  This  right,  like 
that  of  custody,  rests  upon  the  parental  duty  of  maintenance, 
and  furnishes  some  compensation  to  the  father  for  his  own 
services  rendered  the  child. 

Whether  this  right  remains  absolute  in  the  father  until  the 
child  has  attained  full  age  is  apparently  a  matter  of  doubt. 
It  is  certainly  perfect  while  the  period  of  the  child's  nurture 
continues.  But  if  this  is  all,  it  can  be  of  little  consequence, 
because  the  child's  labor  and  services  are  for  that  period  of 
little  or  no  value  ;  nor  could  compensation  be  thus  afforded 
for  the  many  years  when  the  child  was  entirely  helpless.  All 
will  admit  that  the  father's  right  continues  until  the  child 
reaches  fourteen.  And  since  the  father's  guardianship  by 
nature  extends  through  the  full  term  of  the  child's  minority ; 
since,  too,  he  may  by  will  place  a  testamentary  guardian  of 
his  own  choice  over  the  infant ;  since  it  is  reasonable  that  the 
law  should  set  off  years  of  later  usefulness  against  years  of 
earlier  helplessness  ;  in  short,  since  the  age  of  majority  is 
fixed  as  the  period  when  an  infant  becomes  legally  emanci- 
pated from  his  father's  control  ;  we  may  fairly  assume  that, 
all  other  things  being  equal,  the  father  is  actually  entitled  to 
the  value  of  his  child's  labor  and  services  until  the  latter 
becomes  of  age.  This  is  the  principle  assumed  by  the  ele- 
mentary writers,*   and   in  most  of  the  judicial  decisions;^ 

1  Torrington  v.  Norwich,  21  Conn.  3  i  b1.  Com.  45-3;  2  Kent  Com.  193. 
543;  People  v.  Mercein,  3  Hill,  408.  *  1  Bl.  Com.  453 ;  Reeve  Dom.  Rel. 
And  see  Vansittartc  Vansittart,  4  Kay     290. 

&  J.  62;  Johnson  v.   Terry,  34  Conn.  &  Day?;.  Everett,  7  Mass.  145;  Ben- 

259.  son  V.  Remington,  2  Mass.  1 13  ;  Plum- 

2  Wodell  V.  Coggeshall,  2  Met.  89.  nier  v.  Webb,  4  Mason,  380  ;  Gale  v. 
And  see  State  r.  Smith,  6  Me.  402.  Parrot,    1    N.    H.    28  ;    Nightingale    v. 

As  to  custody  in  matters  of  guardian-  Withington,  15  Mass.  272;  The  Etna, 
ship,  see  infra,  Part  IV.  Ware,  462. 

347 


§  252  a  THE  DOMESTIC   RELATIONS.  [PART   lU. 

though  to  such  opinion  Chancellor  Kent  appears  to  yield  a 
somewhat  doubtful  assent.^ 

The  right  of  action  to  recover  for  the  services  of  a  minor  is 
then  presumed  to  be  in  his  father.^  And  the  father  may 
charge  services  rendered  by  his  son,  as  a  master  for  his  ap- 
prentice or  hired  laborer,  and  consider  it  his  own  work.^  The 
right  to  sue  for  services  quantum  meruit  is  likewise  prima 
facie  in  the  father.'*  We  assume  that  the  child  lives  at  home 
or  is  supported  by  the  parent.  And  if  a  child,  being  of  full 
age,  chooses  to  remain  with  the  father,  or  is  imbecile  and 
needs  to  be  harbored  at  home,  the  relation  ma}^  continue  so 
as  to  entitle  the  parent,  either  as  such  or  on  the  principle  of 
master  and  servant,  to  recover  for  the  child's  wages  in  the 
same  manner,^ 

§  252  a.  The  Same  Subject.  —  But  the  duties  and  rights  of 
parents  are  limited,  mutually  dependent,  and  in  a  great  degree 
correspondent  with  one  another.  When  the  father  has  dis- 
charged himself  of  the  obligation  to  support  the  child,  or  has 
obliged  the  child  to  support  himself,  our  courts  are  reluctant 
to  admit  his  right  to  the  child's  services.  Under  such  circum- 
stances, says  a  New  Hampshire  court,  "  there  is  no  principle 
but  that  of  slavery  which  continues  his  right  to  receive  the 
earnings  of  his  child's  labor."  ^  Of  the  emancipation  of  chil- 
dren, thus  or  otherwise  secured,  we  shall  speak  hereafter.'^ 

The  parent  may  voluntarily  relinquish  the  right  to  his 
child's  earnings,  and  may  permit  the  child  to  earn  for  himself, 
receive  his  earnings,  and  appropriate  them  at  pleasure.  He 
is  not  obliged  to  claim  such  earnings  for  the  benefit  of  his 
own  creditors.^     And  if  the  parent  authorize  a  third  person 

1  2  Kent  Com.  193.  Overseers  of  Alexandria  v.  Overseers 

2  Dufield  V.  Cross,  12111.397;  Shute  of  Bethleliem,  1  Harr.  122;  infra,  c.  5. 
V.  Dorr,  5  Wend.  204;  Hollingsworth  ^  Woods,  J.,  in  Jenness  r.  Emerson, 
V.   SwedenborfT,   49   Ind.   378;    Mona-  15  N.  H.  489.     But  in  tiiis  case  theprin- 
ghan   V.  School  District,  38  Wis.  100.  ciple  seems  to  be  assumed  that  the  pa- 
See  Campbell  v.  Cooper,  34  N.  H.  49.  rent's   obligation    to    support   and   his 

*  Brown  v.  Ramsay,  5  Dutch.  117.  right  to  receive  wages  commence  to- 
But  see  Jones  v.  Buckley,  19  Ala  604.  gether,  continue  together,  and  ought 

*  Letts  V.  Brooks,  Hill  &  Den.  36 ;  always  to  terminate  together. 
Van  Dorn  v.  Young,  13  Barb.  286.  ?  See  infra,  c.  5. 

^  Brown  v.  Ramsay,  5  Dutch.  117;         ^  Even  if  the  father  is  insolvent,  he 

348 


CHAP.    III.]  EIGHTS    OF    PAEENTS.  §  252  « 

to  employ  and  pay  the  child,  payment  to  the  child  and  not  to 
the  parent  will  be  a  sufficient  discharge.  Such  an  agreement 
may  be  in  express  terms,  or  it  may  be  implied  from  circum- 
stances.i  An  American  court  favorably  regards  contracts  of 
this  nature,  for  the  child's  benefit,  as  they  are  in  conformity 
with  the  spirit  of  free  institutions.^  And  a  New  York  statute 
provides  that  unless  the  parent  notifies  the  minor's  employer, 
within  thirty  days  after  the  commencement  of  service,  that  he 
claims  the  wages,  payment  to  the  minor  will  be  good.^  When 
the  parent  is  a  pauper  and  is  maintained  by  a  town,  such 
town  is  held  not  entitled  to  the  earnings  of  a  minor  child  who 
is  not  himself  a  pauper.^  The  father  may  by  his  own  delay 
forfeit  tlie  right  of  action  for  his  son's  wages ;  as  where  the 
minor  agrees  to  work  at  certain  monthly  wages  to  be  paid  to 
himself,  and  the  father,  knowing  of  the  agreement,  gives  no 
notice  of  his  objection,  but  waits  until  the  work  has  been  done 
and  payment  is  made  to  the  child,  before  making  a  demand.^ 
But  if  the  father  has  given  seasonable  notice  of  his  dissent 
and  demand  to  the  stranger  hiring  his  son,  the  fact  that  the 
son  continues  to  work  against  his  express  dissent,  and  that 
the  stranger  notified  him  to  come  and  take  his  son  away  and 
he  neglected  to  do  so,  will  not  preclude  him  from  recover- 
ing the  wages.^  Nor  does  the  fact  that  the  son  has  agreed 
with  his  father  to  buy  out  his  time  for  the  remainder  of  his 
minority  by  paying  a  certain  sum  therefor,  which  has  not 
been  paid,  prevent  the  father  from  recovering  his  wages  pend- 
ing the  payment  of  such  sum  J 

may  thus  relinquish,  provirled  this  be  contract  for  employment,  even  though 

done  in  good  faitli.     Wilson  v.  McMil-  the  father  might  also  sue ;  relinquish- 

lan,  62  Ga.  10  ;  Atwood  v.  Holconih,  39  ment  of  the  hitter's  right  being  implied 

Conn.  270 ;  Wambold  v.  Vick,  50  Wis.  from  circumstances.     Benziger  v.  Mil- 

456.     But  the  executory  promise  to  re-  ler,  50  Ala.  206.     See  post,  c.  5. 
linquish  is  revocable.     Stovall  v.  John-         3  N.  Y.  Laws,  1850,  p.  579  ;  Ilerrick 

son,  17  Ala.  14.  v.  Fritcher,   47    Barb.   589.     And  see 

1  See  Campbell  v.  Cooper,  34  N.  H.  Everett  v.  Sherfey,  1  Iowa,  356. 

49  ;  Jennesis  v.  Emerson,  15  N.  H.  489;  *  Jenness  v.  Emerson,  15  N.  H.  486. 

Cloud   V.  Hamilton,    11   Humpli.   104:  5  Smith  r.  Smith,  30  Conn.  111. 

Armstrontr  c   McDonald,  10  Barb.  .300.  ^  /j 

2  Snedil<er  y.  Everingham,3Dutch,  7  CahlU  v.  Patterson.  30  Vt.  592. 
143;  Cloud  v.  Hamilton,  11  Humph.  And  see  Kauffett  v.  Moilerwell,  21 
104.     An  infant  may  sue  for  breach  of  Penn.  St.  222  ;  Cloud  v.  Hamilton,  11 

349 


§252  a  THE   DOMESTIC   RELATIONS.  [PART   III. 

We  may  add  that  whatever  private  arrangement  may  exist 
between  the  father  and  his  son,  unless  it  is  brought  to  the 
employer's  notice  it  cannot  be  set  up  to  justify  payment  to  the 
minor  himself.  As  for  instance,  where  father  and  son  had 
secretly  agreed  that  the  latter  should  have  his  own  wages.^ 
And  the  publication,  by  a  parent,  of  a  notice  of  his  son's 
emancipation,  more  liberal  to  the  latter  than  the  actual  agree- 
ment between  them,  will  not,  as  against  one  who  has  no 
knowledge  of  the  publication,  estop  the  father  from  insisting 
on  such  right  to  his  son's  wages  as  the  contract  between  them 
actually  gives.^  But  the  usage  of  father  and  son  may  be 
alleged.^ 

One  who  employs  the  minor  son  of  another  cannot  be  liable 
to  his  father  as  for  breach  of  contract,  because  of  such  minor's 
delinquencies.  Hence,  it  is  held,  that  where  the  father  con- 
tracts that  his  minor  son  shall  work  for  a  specified  time  and 
price,  and  the  son  leaves  his  emploj^er  before  the  expiration 
of  the  time,  against  his  father's  will,  the  father  can  only 
recover  for  the  time  of  actual  employment,  although  the  em- 
ployer assented  to  the  departure.^  But  where  the  minor  is 
hired  to  serve  for  a  specified  time,  the  employer  who  con- 
tracted with  the  parent  should  notify  the  latter  of  any  failure 
of  duty  on  the  child's  part  before  discharging  the  child,  nor 
should  he  discharge  without  notice  to  the  parent.^  If  a  father 
place  his  minor  son  to  work  for  another,  for  no  illegal  pur- 
pose, and  without  knowledge  and  assent  as  to  his  illegal  em- 
ployment in  fact,  he  is  still  entitled  to  compensation  for  his 
son's  services.  As  where  a  son  is  emplo^^ed  by  another  in 
unlawfully  selling  intoxicating  liquors,  the  father  being  igno- 
rant of  the  nature  and  character  of  the  services  while  they 
were  being  performed.^ 


Humph.  104  ;  Whiting  v.  Earle,  3  Pick.  See   Schoenberg  v.  Voight,   36   Mich. 

201.  310,wliere,  the  employment  being  ^■uan- 

1  KaufFelt   v.  Moderwell,  21    Penn.  turn  meruit,  the   employer   could   show 

St.  222.  that  the  son  had  embezzled  more  than 

-  Mason  v.  Hutchins,  32  Vt.  780.  liis  services  were  worth.     But  cf.  The 

3  Perlinau   v.  Phelps,  25  Vt.   478 ;  Lucy  Anne,  3  Ware,  253. 
Canovar  v.  Cooper,  3  Barb.  115.  ^  Pay  v.  Oglesby,  53  Ga.  G46. 

*  Hennessy  v.  Stewart,  31  Vt.  486.         «  Emery  v.  Kenipton,  2  Gray,  257. 

350 


CHAP.  III.]  IlIGHTS    OF   PARENTS.  §  253 

Wages  due  a  minor  seaman  belong  to  his  father,  and  the 
latter  may  sue  for  them  in  admiralty. ^  And  payment  of  such 
wages  to  the  son,  while  he  was  known  by  his  employer  to 
have  been  less  than  twenty-one  at  the  time  of  making  the 
contract,  furnishes  no  defence  to  an  action  by  the  father,  who 
had  no  knowledge  of  his  hiring  until  after  the  wages  were 
earned.2  Nor  is  the  father,  in  such  case,  affected  by  the  terms 
of  the  shipping  articles,  because  it  is  an  express  contract 
which,  as  against  him,  the  son  has  no  right  to  make  ;  he  can 
claim  under  a  qumitiun  meruit  for  the  value  of  the  services. 
But  mercantile  custom  may  determine  certain  questions  as  to 
the  remedy.3  As  to  enlistments  in  the  army  or  navy  of  the 
United  States,  the  laws  contemplate  that  the  contract  is  per- 
sonal and  for  the  benefit  of  the  infant ;  and  pay,  bounties,  and 
prize-money  in  general,  though  earned  under  State  laws,  are 
held  to  belong  to  the  son,  and  not  to  the  father.* 

§  253.  Clothing,  Money,  &c.,  given  to  the  Child;  Right  to  In- 
sure. —  Where  a  father  furnishes  his  minor  child  with  cloth- 
ing, such  clothing  is  the  property  of  the  father,  and  he  may 
maintain  an  action  for  the  loss  and  injury  thereof;  but  where 
he  intrusts  the  child  with  a  sum  of  money  for  general  pur- 
poses, without  specific  directions  as  to  its  appropriation,  and 
the  child  buys  clothing  with  it,  such  clothing  is  not  the  prop- 
erty of  the  father.^  The  parent  may  give  articles  by  parol 
to  his  child,  and  afterwards  resume  them,  there  being  no 
consideration.^  If  a  young  child  makes  foolish  and  unneces- 
sary outlay,  the  parent  may  repudiate  the  transaction.' 

1  Gifford  V.  Kollock,  3  Ware,  45.  5  Dickinson  v.  Winchester,  4  Cush. 
As  to  tlie  effec  of  desertion  by  the  114 ;  Parmelee  v.  Smith,  21  Ilh  620 ; 
child  after  attaining  majority,  see  Cuf-     Prentice  v.  Decker,  49  Barb.  21. 

fin  V.  Siiaw,  3  Ware,  82.  6  Cranzr.  Kroger,  22  111.  74;  Stovall 

2  Whiter.  Henry,  24  Me.  531.     See    v.  Johnson,  17  Ala.  14. 

"Weeks  v.  Holmes,  12  Cush.  215.  '^  See    Sequin  v.  Peterson,    45  Yt. 

3  Bishop  V.  Shepherd,  23  Pick.  402.  255,  and  cases  cited.  Here  the  child, 
*  United  States  v.  Bainbridge,  1  eleven  years  old,  having  bought  cigar- 
Mason,  84;  Baker  u.  Baker,  41  Vt.  55;  holders,  pipes,  &c.,  of  a  shopkeeper, 
Banks  i;.  Conant,  14  Allen,  497  ;  INIears  the  father  was  allowed  to  recover  the 
V.  Bickford,  55  Me.  528;  Carson  v.  money  in  his  own  name,  upon  promptly 
Watts,  3  Doug.  350 ;  Cadwell  v,  Sher-  repudiating  the  contract  and  making 
man,  45  111.348;  Magee  v.  Magee,  65  Ids  demand.  JNIoney  entrusted  to  a 
111.  255.  But  cf.  Giun  v.  Ginn,  38  Ind.  minor  son  for  a  specific  purpose,  and 
526.  applied  by  him  without  his  father's  as- 

351 


§  2-55  THE   DOMESTIC   KELATIONS.  [PART    III. 

A  father  has  a  pecuniary  interest  in  the  life  of  a  minor 
child,  and  an  insurance  of  the  life  of  such  cliild  is  not  witliin 
the  rule  of  law  by  which  wager  policies  are  declared  void.^ 

§  254.  Mother's  Rights  to  Child's  Services  and  Earnings.  —  At 
the  common  law  a  mother  has  no  implied  right  to  the  ser- 
vices and  earnings  of  her  minor  child ;  not  being  bound  for 
the  child's  maintenance.  Nor  have  her  rights  or  liabilities 
in  these  respects  been  usually  regarded  as  equivalent  to  those 
of  a  father,  even  where  she  is  the  only  surviving  parent.^ 
But  the  modern  tendency  in  this  countr}',  if  not  in  England, 
is  certainly  to  treat  a  mother's  rights  with  considerable  favor, 
especially  if  she  be  a  widow ;  and  in  several  late  cases  her 
title  has  been  upheld  in  her  minor  child's  clothing  ^  or  earn- 
ings, so  far  as  concerns  third  persons ;  it  appearing  that  she 
was  the  surviving  parent,  and  that  the  child  had  no  probate 
guardian  and  was  not  emancipated.  Whether  such  title  on 
her  part  could  be  so  well  enforced  against  the  child's  own 
consent,  and  to  the  extent  of  depriving  the  child  of  the  fruits 
of  his  own  toil,  especially  if  she  remarries,  may  be  reasonably 
doubted.* 

§  255.  Parent  has  no  Right  to  Child's  General  Property.  —  As 
a  rule,  the  parent  has  no  rights  over  the  child's  general  prop- 
erty. The  law  treats  legacies,  gifts,  distributive  shares,  and 
the  like,  which  may  vest  in  a  person  during  minority,  as  his 
own  property  ;  and  the  modern  practice  is  to  require  the  ap- 
pointment of  a  guardian  in  such  cases,  to  manage  the  estate 
until  the  child  comes  of  age.^     Under  no   pretext  may  the 

sent  in  compounding  his   own  crime,  Port.  123  ;  Pray  r.  Gorliam,  31  IMe.  240; 

may  be  recovered  by  tlie  father  from  Snediker  v.  Everingham,  3  Dutcli.  143. 

the  receiver  upon  a  similar  principle.  See   Clapp   v.    Greene,    10   Met.   439; 

Burnham  v.  Holt,  14  N.  H.  367.     A/iter,  Campbell  v.  Campbell,  3  Stockt.  268. 
if  the  father  assented  to  the  payment,  ^  Burke   v.   Louisville  II.,  7  Heisk. 

or  if  the  money  was  paid  solelj'  as  civil  451. 
damages  in  settlement  of  a  trespass.   lb.  *  See  Mattbewson  r.  Perry,  87  Conn. 

1  Mitchell  V.  Union,  &c.  Ins.  Co.,  435 ;  Hammond  v.  Corbctt,  50  N.  H. 
45  Me.  104.  But  see  Worthington  v.  501 ;  Hays  v.  Seward,  24  Ind.  352;  Hol- 
Curtis,  1  Cb.  D.  419.  lingsworth  v.  Swedenborg,  49  Ind.  378 ; 

2  1  Bl.   Com.   453;  Commonwealth  Lind  c  SuUestadt,  21  Hun,  364. 

V.  Murra}',  4  Binn.  487  ;  Riley  v.  Jarae-  ^  Keeler  v.  Fassett,  21  Vt.  539 ;  Jack- 
son, 3  N.  H.  29 ;  People  v.  Mercein,  3  son  v.  Combs,  7  Cow.  36  ;  Miles  r.  Boy- 
Hill,   400;  Morris  v.  Low,  4  Stew.  &    den,  3  Pick.  213 ;  Cowellr.  Daggett,  97 

352 


CHAP.  IV.]       child's  injukies  and  frauds.  §  257 

father  appropriate  such  funds  to  himself,  or  use  them  to  pay 
his  own  debts ;  and  an  administrator  or  trustee  who  pays 
the  child's  money  to  the  father  as  parent  incurs  a  personal 
risk.i  The  same  may  be  said  of  the  child's  lands.^  And  the 
parent's  investment  of  his  child's  money  for  the  latter's  ben- 
efit will  be  protected  against  all  creditors  of  the  former,  who 
are  cliargeable  with  notice  of  the  child's  rights. ^ 

§  256.  Constitutional  Right  of  Legislature  to  interfere  with 
Parent.  —  The  rights  of  parents  in  relation  to  the  custody 
and  services  of  their  children  may  be  enlarged,  restrained, 
and  limited,  as  wisdom  or  policy  may  dictate,  unless  the  legis- 
lative power  is  limited  by  some  constitutional  prohibition.* 
But  it  is  held  that  the  State  has  no  constitutional  right  to 
interfere  with  the  parent  and  take  charge  of  a  child's  educa- 
tion and  custod}',  on  the  mere  allegation  that  he  is  "  destitute 
of  proper  parental  care,  and  is  growing  up  in  mendicancy, 
ignorance,  idleness,  and  vice."  ^ 


CHAPTER  IV. 

THE   parent's   rights    AND    LIABILITIES   FOR   THE   CHILD's 
INJURIES    AND   FRAUDS. 

§  257.    Injuries,  &c.,  committed  upon  or  by  the  Child.  —  Two 
distinct  topics  are  to  receive  treatment  in  the  present  chapter, 

Mass.  434  ;  Kenninghamf.  M'Lauglilin,  But  as  to  payments  of  income  by  the 

3  Monr.   30.     And   see  Guanlian  and  debtor  to  the  natural  guardian,  wliich 

"Ward,  infra.     But  see  Selden's  Appeal,  income  is  applied  to  tiic  cliild's  neces- 

31  Conn.  548.    A  father  who  buys  prop-  sary  use,  see  Southwestern  R.  v.  Chap- 

erty  for  himself  in  his  son's  name  must  man,  46  Ga.  557. 

not   perpetrate   a   fraud    upon   others.  *  United    States   v.    Bainbridge,    1 

Richardson's  Case,  L.  R.  19  Eq.  588.  Mason,   71,  per   Story,   J.  ;  Bennet  v. 

1  Perry  v.  Carmichael,  95  111.619;  Bennet,  2  Beasl.  114;  State  v.  Clottu, 
Clark  V.  Smith,  13  S.  C.  585.  38  Ind.  409. 

2  As  to  conveying  an  easement,  see  ^  People  v.  Turner,  55  111.  280.  "  Sun- 
Farmer  V.  McDonald,  59  Ga.  509.  A  day  laws  "  of  Vermont  do  not  prevent 
fatlier,  as  such,  cannot  be  judicially  a  father  from  journeying  to  see  his 
empowered  to  sell  his  son's  land,  children,  who  are  properly  absent  from 
Guynn  v.  McCauley,  32  Ark.  97.  home.     McCrary  v.  Lowell,  44  Vt.  116. 

3  McLaurie  v.  Partlow,  53  III.  340. 

23  353 


§  258  THE   DOMESTIC    RELATIONS.  [PART    III. 

under  the  head  of  the  parent's  rights  and  liabilities  for  the 
child's  injuries  and  frauds.  First,  the  parent's  right  of  action 
where  his  child  is  the  injured  party.  Second,  the  parent's 
liability  to  action  where  his  child  is  the  injuring  party. 

§  258.  Injuries  committed  upon  the  Child ;  Parent's  Right  to 
Sue.  —  First.  Where  a  child  suffers  wrong,  he  has  his  action 
for  the  personal  injury.^  But  besides  this  the  parent  may 
usualh^  claim  indemnity  for  loss  of  his  child's  services,  to 
which  should  be  added  the  incidental  expenses  incurred  in 
consequence  of  the  injury.  Hence  arises  a  cause  of  action  in 
the  parent 7?er  quod,  the  foundation  of  which  is  a  loss  of  the 
child's  services.  There  are  various  tortious  acts,  by  which  a 
parent  may  be  deprived  of  his  child's  sei'vices  ;  and  the  law  is 
generous  in  securing  compensation  for  the  injury. 

But  in  this  connection  the  parental  relation  is  not  strictly 
to  be  considered ;  the  rule  being  that  a  parent  has  no  remedy 
for  an  injury  done  to  his  child  by  the  wrongful  act  of  an- 
other, unless  that  child  can  be  treated  in  law  as  his  servant.^ 

This  is  laid  down  positively  as  the  English  rule.  Thus,  in 
a  case  where  the  plaintiff  brought  an  action  against  the  de- 
fendant for  carelessly  driving  over  and  injuring  the  plaintiff's 
child,  so  that  the  plaintiff  was  obliged  to  expend  a  large  sum 
of  money  in  doctors  and  nurses,  and  it  appeared  that  the 
child  was  only  two  years  and  a  half  old,  and  incapable  of 
performing  any  act  of  service,  it  was  held  that  the  parent's 
action  was  not  maintainable.^  "  The  gist  of  the  action,"  it 
is  here  said,  "  is  the  loss  of  services,  and  therefore,  though  the 
relation  of  parent  and  child  subsists,  yet,  if  the  child  is  in- 
capable of  performing  any  services,  the  foundation  of  the 
action  fails."*  And  it  is  doubtful  whether  the  father,  as 
such,  can  even   maintain   a  special  action   for  the  expenses 

1  See  post,  Tart  V.  c.  4.     The  fact  2  2  IliUiard  Torts,  518-529 ;  Addison 

that  a   child,  hy   her   father   as    next  Torts,  697 ;  Grinnell  v.  Wells,  7  M.  & 

friend,  has  re(;overed  damages   for   a  Gr.  1041;   Rogers   v.    Smith,    17    Ind. 

personal    injury,    does     not    bar    the  323  ;  Hartfield  u.  Roper,  21  Wend.  615; 

father's  subsequent  action  for  loss   of  Dennis    v.  Clark,  2    Cush.   347.     And 

services  from  the  same  injury.     Wil-  see  Bigelow  on  Torts, 
ton   V.   Middlesex  R.,    125   Mass.  130.  ^  piall  v.  Hollander,  7  Dowl.  &  Ry. 

Here  the  child  reached  majority  before  133  ;  4  Barn.  &  Cress.  660. 
the  father  sued.  *  Bayley,  J.,  in  ib. 

354 


CHAP.  IV.]         child's   INJUKIES    AND   FRAUDS.  §  259 

necessarily  incurred  by  him  in  having  so  young  a  child  cured 
of  the  injury.^ 

In  this  country,  the  rule  appears  to  be  more  liberal  towards 
the  parent.  A  New  York  court  observes  that  it  is  really 
questionable  whether  the  father  can  be  deprived  of  his  right 
to  sue  for  the  loss  of  services,  on  account  of  the  child's  youth  ; 
though,  of  course,  the  right  may  be  forfeited  by  the  parent's 
culpable  negligence.^  And  in  Massachusetts  it  is  decided 
that  if  an  infant  child,  a  member  of  his  father's  household, 
and  too  young  to  be  capable  of  rendering  any  service  to  his 
father,  is  wounded  or  otherwise  injured  b}'  a  third  person,  or 
by  a  mischievous  animal  owned  by  a  third  person,  under  such 
circumstances  as  to  give  the  child  himself  an  action  against 
such  person  for  the  personal  injury,  and  the  father  is  thereb}' 
necessarily  put  to  trouble  and  expense  in  the  care  and  cure 
of  the  child,  he  may  maintain  an  action  against  such  person 
for  indemnity.  The  court  laid  down  the  rule,  however,  with 
much  caution. 3 

§  259.  Same  Subject.  —  Statutes  enlarging  the  rights  of 
widows,  dependent  parents,  and  others,  in  torts  occasioned  by 
the  negligence  of  railroad  corporations  and  other  common 
carriers,  are  to  be  found  in  England  and  America.  Under 
such  statutes  it  is  frequentl}''  provided  that,  where  a  child  is 
thus  killed,  the  child's  administrator  may  sue  for  the  parent's 
benefit.  The  English  statute,  known  as  Lord  Campbell's 
Act,  9  &  10  Vict.  c.  93,  has  given  rise  to  suits  of  this  kind ; 
but  the  rule  is  laid  down  that  such  actions  are  not  maintain- 
able without  some  evidence  of  actual  pecuniary  damage, 
some  loss  of  service.*  Though  natural  equity  may  assert 
otherwise,  the  common  law  does  not  permit  a  father  to  re- 

^  See  Addison  Torts,  697 ;  Grinnell  such   child.     Sykes  v.  Lawlor,  49  Cal. 

V.  Wells,    8   Scott  N.  R.  741.     Contra,  236.     Cf.  Karr  v.  Parks,  44   Cal.   46 ; 

Hall  w.  Hollander,  supra.  Sawyer  v.  Sauer,  10  Kan.  519. 

2  Hartfield  v.  Roper,  21  Wend.  615.  *  Duckworth  v.  Johnson,  4   Hurl.  & 

3  Dennis  v.  Clark,  2  Cush.  347.  A  Nor.  653.  See  further,  Frank  v.  New 
parent  may  recover  the  expense  of  Orleans,  «&;c.  R.,  20  La.  Ann.  25; 
nursing  and  healing  his  minor  child  of  Pennsylvania  R.  v.  Bantom,  54  Penn. 
such  tender  years  that  it  is  incapable  St.  405;  Gann  v.  Worman,  69  Ind. 
of  rendering  him  any  service,  from  458 ;  Perry  d.  Carmichael,  95  111.  519. 
one  who  wilfully  or  negligently  injures 

355 


§  239  THE   DOMESTIC   RELATIONS.  [PART   III. 

cover  for  injuries  causing  the  immedi.ate  death  of  his  child, 
either  on  the  ground  of  loss  of  services  or  for  burial  expenses.^ 
And  since,  as  we  have  seen,  the  parent's  right  of  suit  is 
founded  upon  the  loss  of  a  child's  services,  there  are  circum- 
stances under  which  such  suits  might  be  brought,  notwith- 
standing the  child  was  of  age,  contrary  to  the  general  rule.^ 

Trespass  lies  per  quod  for  loss  of  services  occasioned  by 
assault  and  battery  of  the  child.^  The  true  question  here,  as 
elsewhere,  seems  to  be,  whether  a  loss  of  service  was  conse- 
quent upon  the  injury.  For  assault  and  battery  on  the  high 
seas,  there  is  likewise  a  remedy  in  admiralty.* 

If  the  parent  has  finally  relinquished  his  right  to  the  ser- 
vices of  his  child,  he  cannot  claim  such  damages  ;  they  belong 
to  the  master,  if  any  one  ;  but  this  question  of  relinquishment 
is  for  determination  on  the  usual  principles.^  And  where  an 
injury  is  inflicted  upon  a  child  while  living  with  and  in  the 
service  of  another,  the  proper  remedy  of  the  father  is  trespass 
on  the  case  for  the  reversion,  as  it  were,  of  the  child's  ser- 
vices ;  as  where  a  person  who  hired  the  son  of  another  put 
him  upon  a  vicious  horse,  so  that  he  was  thrown  and  had  his 
leg  broken.^  And  the  parent's  negligence  may,  in  certain 
cases,  defeat  his  own  right  of  action  for  loss  of  service  alto- 
gether, as  well  as  that  of  the  young  child  for  the  injury  suf- 
fered.7  The  death  of  the  child  after  the  injury,  though  it 
may,  on  familiar  principles,  terminate  the  right  to  sue  for 
the  child's  tort,  does  not  affect  the  parent's  consequential 
right  of  action.  The  death  occurring  before  the  commence- 
ment of  the  suit,  if  in  consequence  of  the  injury,  only  aggra- 


1  Osborn  v.  Gillett,  L.  R.  8  Ex.  88,  ments,  see  Hearst  v.  Sybert,  Cheves, 

and  cases  cited;  Edgar  i'.  Cnstello,  14  177. 

S.  C.  20;   McDowell  v.  Georgia  R.,  60  *  Plunimer  v.  Webb,  Ware,  75. 

Ga.    320 ;    Carey    v.  Berkshire    R.,  1  *  Arnold  v.  Norton,  25  Conn.  92. 

Cush.  475.  ®  Wilt  v.  Vickers,  8  Watts,  227. 

■2  Pennsylvania     R.    v.    Keller,    67  '  See /n/m,  Part  V.  c.  4;  Pierce  v. 

Penn.  St.  300;  Mercer  t-.  Jackson,  54  Millay,  62  111.  133;  Smith  v.  Heston- 

111.397.     And  see /«/;•(/,§  262.  ville   R.,  92  Penn.  St.   450;   Kreis  v. 

3  Hammer  y.  Pierce,  5  Barring.  171 ;  Wells,  1    E.   D.    Smith,    74;    Glassey 

Hoover  v.  Heim,  7   Watts,  62 ;  Plum-  v.    Hestonville,  &c.   R.,   57   Penn.    St 

mer  v.  Webb,   Ware,  75;  Cowden   v.  172. 
Wright,  24  Wend.  429.  But  as  to  indict- 
356 


CHAP.  IV.]  child's    injuries    AND    FRAUDS.  §  260 

vates  the  parent's  remed}- ;  if  tlie  death  is  occasioned  by  other 
causes,  it  leaves  the  remedy  as  it  stood  before.^ 

§  260.  Suit  for  harboring  or  enticing  away  One's  Child  ;  Ab- 
duction, &c.  —  Every  person  who  knowingly  and  designedl}^ 
interrupts  the  relation  subsisting  between  parent  and  child, 
by  procuring  the  child  to  depart  from  the  parent's  service,  or 
by  harboring  and  keeping  him  after  he  has  quitted  his  home, 
commits  a  wrongful  act,  for  which  he  is  responsible  to  the 
parent.  The  offence,  where  force  was  not  used,  is  known  as 
enticement,  and  the  rule  applies  to  the  relation  of  master 
and  servant.  In  such  cases,  again,  the  parent  sues  on  a  prin- 
ciple analogous  to  that  of  the  master ;  namely,  because  of  an 
alleged  loss  of  service  ;  or  possibly  in  trespass  vi  et  armis 
upon  the  more  reasonable  allegation  of  loss  of  the  child's 
society.^  And  this  action  will  lie  on  behalf  of  the  mother 
after  the  father's  death. ^  The  quo  animo  of  the  defendant  in 
such  suits  is  always  material.  To  afford  shelter  is  one  thing  ; 
to  encourage  filial  disobedience  another.  The  mere  employ- 
ment of  a  runaway  child  does  not  amount  to  enticement.'* 
But  where  it  ap]3ears  that  the  defendant,  knowing  that  the 
son  had  absconded  from  his  father,  boarded  him  in  his  family 
and  allowed  him  to  work  on  his  farm  as  he  pleased,  doing  this 
with  the  intention  of  aiding  or  encouraging,  or  with  the 
knowledge  that  it  aids  and  encourages  the  son  to  keep  away 
from  the  father,  he  is  liable  to  this  action.^ 

1  Plummer  r.  Webb,  Ware,  80;  y.  Rice,  76  N.  C.  194 ;  Queen  f.  Prince, 
Winsmore  v.  Greenbank,  Bull.  N.  P.  L.  R.  2  C.  C.  154.  The  doctrine  of  en- 
78;  Ihl  I'.  Street  R.,  47  N.  Y.  317.  ticement  extends   to    the   relation    of 

2  Lumley  f.  Gye,  2  El.  &  B.  224;  Master  &  Servant,  where  it  will  be 
Kirkpatrick  w.  Lockhart,  2  Brev.  276;  considered  further.  See /w.-;^.  Part  VI., 
1  Woodes.  Lee. 451  ;  Sargent?;.  Mathew-  c.  4  ;  Noice  v.  Brown,  39  N.  J.  L.  569  ; 
son,  38  N.  H.  54;  3  Bl.  Com.  140.  Morgan  v.  Smith,  77  N.  C.  37.     Where 

3  Jones  V.  Tevis,  4  Litt.  25 ;  Moore  one's  minor  child  is  enticed  away  or 
r.  Christian,  56  Miss.  408.  harbored  against  the  father's  will,  and 

*  Keane  v.  Boycott,  2  H.  Bl.  511  ;  without  justification,  the  offender  can- 

Butterfield  v.  Ashley,  6  Cush.  249.  not,  of   course,  recover  for  the  child's 

6  Sargent  v.  Matliewson,  38  N.  H.  board.  Schnuckle  v.  Biernian,  89  111. 
54;  Everett  v.  Sherfey,  1  Iowa,  856.  454.  But  where  one  employs  a  run- 
Indictment  lies  under  fit  circumstan-  away  child  bona  fide,  without  being 
ces  for  the  oflence  of  abduction  or  guilty  of  this  offence,  he  may  offset 
enticement  of  one's  minor  child.  See  wages  due  the  father  by  the  expense  of 
Langham  v.  State,  55  Ala.   114;  State  actual  support  of  the  child.     Huntoon 

85T 


§  260  THE   DOMESTIC    RELATIONS.  [PART   III. 

A  parent  may  maintain  a  libel  in  the  admiralty  for  the 
wrongful  abduction  of  his  child,  a  minor,  and  carrying  him 
beyond  the  seas.^  Abduction  or  kidnapping  is  an  offence 
similar  to  enticement,  but  implying  the  use  of  force  rather 
than  persuasion;  and  the  parental  remedies  are  similar. 
Where  father  and  mother  live  apart,  the  mother's  assent  to 
the  child's  enlistment  as  a  sailor  may  sometimes  affect  the 
father's  remedies.^  But  some  parental  ratification  of  the 
son's  contract  of  enlistment  should  be  shown,  in  order  to 
defeat  the  parent's  right  of  action  ;  and  similar  principles 
apply  in  the  case  of  an  army  enlistment;  there  being,  doubt- 
less, cases  where  a  parent  may  sue  one  at  law  for  unlawfully 
harboring  and  concealing  his  young  child,  and  so  inducing 
him  to  enlist  as  a  soldier.^ 

There  must  be  a  reasonable  limit  to  suits  by  the  parent  for 
loss  of  his  child's  society  and  services.  Hence  it  is  now  well 
settled  in  this  country  that  the  parent  cannot  sue  for  enticing 
his  child  into  a  marriage  against  the  parent's  consent.*  For  a 
forcible  abduction,  resulting  in  an  imperfect  marriage,  and 
aggravated  cases  of  a  like  nature,  where,  in  fact,  there  is  not 
a  valid  union,  there  might  be  a  remedy.  So  the  marriage 
statutes  not  unfrequently  provide  penalties  to  be  meted  out 
to  offenders  who  aid  and  encourage  infants  in  evading  stat- 
utes requiring  the  consent  of  parents  or  guardians.  But  for 
drawing  children  of  suitable  age  into  a  marriage  which 
pleases  themselves,  the  law  affords  no  redress ;  nor  can  it 
punish  for  the  sake  of  parental  discipline.  And  even  though 
the  match  be  unhappy,  yet  marriage  must  supersede  the 
filial  relation.^     Nor  can  a  parent  sue  a  school  teacher,  school 

r.  Ilazelton,  20  N.  11.  388.     The  father  ting  v.  Seabury,  Sprague,  522  ;  Weeka 

may  sue  on  tlie  basis  of  a  contract  for  v.  Holmes,  12  Cusli.  215. 

his  absconding  ciiild's  wages ;  but  he  ■^  Wodell  v.  Coggesliall,  2  Met.  89. 

is   put   to  his  election,  and  tlie  suit  in  And   see   Worcester   v.   Marchant,    14 

tort  against   the  employer,  for  unlaw-  Pick.  510. 

fully  enticing  or   harboring  liis  minor  ^  Caughey  v.  Smith,  47  N.  Y.  244. 

child,  preclndes  the  action  of  assumpsit  *  Jones  v.  Tevis,  4  Litt.  25 ;  Hervey 

as  for    wages    earned.     Thompson    tr.  v.  Moseley,  7  Gray,  479 ;  Goodwin  v. 

Howard,  31  Mich.  309;  Grand   Rapids  Thompson,  2  Greene  (Iowa),  329.     But 

R.  V.  Showers,  71  Ind.  451.  see  Hills  v.  Hobert,  2  Root,  48. 

1  Steelec.  Tiiacher,Ware,  91 ;  Plum-  ^  Marrying  a  parent's  son  and  heir 

mer  v.  Webb,  4  Mason,  380.     See  Cut-  was  a  civil  injury  at  common  law  du- 

358 


CHAP.  IV.]         child's   injuries   AND   FRAUDS.  §  261 

trustees,  or  others,  for  excluding  his  children  from  school ; 
the  right  of  action,  if  any,  being  in  the  child  ;  ^  and  there 
being  no  real  loss  of  services  consequent  upon  the  affront.  In 
short,  the  general  rule  is  to  place  all  actions  by  the  parent  on 
the  sole  ground  of  value  of  the  lost  services  of  the  child, 
who  is  regarded  as  a  servant  for  the  purpose  of  the  suit ;  not 
to  punish,  for  the  sake  of  the  father,  those  who  wrong  the 
child.2  And  the  most  liberal  view  of  the  subject  indicated 
by  American  courts  is  to  regard  the  parent  as  in  a  measure 
entitled  to  the  society  and  solace  of  his  own  children  ;  though 
this  reasonable  position  is  not  clearly  supported  by  authority. 

§  261.  Suits  for  Seduction  of  a  Child.  —  Even  in  seduction 
suits  the  same  technical  principle  is  rather  absurdly,  though 
not  always  unkindly,  applied.  The  foundation  of  the  action 
by  a  father  to  recover  damages  against  the  wrong-doer  for 
the  seduction  of  his  daughter  has  been  uniformly  placed, 
from  the  earliest  times,  not  upon  the  seduction  itself,  which  is 
the  wrongful  act  of  the  defendant,  but  upon  the  loss  of  ser- 
vice of  the  daughter,  in  which  he  is  supposed  to  have  a  legal 
right  or  interest.^  At  common  law  the  seduced  woman  her- 
self has  no  cause  of  action  against  her  seducer.^  And  with- 
out some  allegation  and  proof  of  loss  of  service  in  a  parent 
or  master  the  action  is  not  maintainable. 

Thus,  where  it  was  alleged  by  the  father  that  his  daughter 
was  a  poor  person,  maintaining  herself  by  her  labor  and  per- 
sonal services,  and  not  of  sufScient  ability  to  maintain  herself 
otherwise  ;  and  that,  by  being  debauched,  she  became  unable 

ring  the  continuance   of  tlie  military  see  dirtum  in   Stephenson   v.   Hall,  14 

tenures,  for  thereby  the  parent  lost  tlie  Barb.  222. 

value  of  liis  child's  marriage  ;  but  tiiis  ^  Qrinnell  v.  "Wells,  7  M.  &  Gr.  1033  ; 

injury  ceased  long  ago,  with  the  right  Eager  v.  Grimwood,  1  Exch.  Gl ;  Van 

on   whicli  it  was  founded.     See  3  Bl.  Horn    v.  Freeman,  1   Halst.   322;  Mc- 

Com.  140,  and  notes.  Daniel  r.  Edward,  7  Ired.  408  ;  Sutton 

1  Spear  v.  Cummings,  23  Pick.  224 ;  v.  Huffman,  32  N.  J.  L.  58;  Knight  v. 
Donahoe  v.  Riciiards,  38  Me.  376;  Boyd  Wilcox,  14  N.  Y.  413  ;  Bartley  v.  Richt- 
V.  Blaisdell,  15  Ind.  73  ;  Stephenson  v.  nieyer,  4  Comst.  38. 

Hall,   14  Barb.  222.      Contra,  Roe   v.         *  Woodward  v.  Anderson,  9  Bush, 

Deniing,  21  Ohio  St.  666.  624.     Some  statutes  change  this  rule 

2  Hall  !'.  Hollander,  4  B.  &  C.  660 ;  and   favor  direct  suits   for   seduction. 
Grinnell   v.  Wells,  7  M.  &  Gr.   1083 ;  Thompson  v.  Young,  51  Ind.  599. 
Eager  v.  Grimwood,  1  Exch.  61.     But 

859 


§  261  THE   DOMESTIC   EELATIONS.  [PART   HI. 

to  work,  and  had  to  be  maintained  by  her  father  at  consider- 
able expense  —  all  this  was  held  insufficient  allegation  of  loss 
of  service.^  So  it  is  not  enough  to  show  that  the  father  had 
apprenticed  his  daughter  to  the  defendant  to  learn  millinery, 
and  had  paid  him  a  large  sum  of  money  to  instruct  her  in  a 
trade,  but  that  the  defendant  seduced  her  and  rendered  her 
unable,  by  reason  of  pregnancy,  to  learn  the  trade.^  But  the 
evidence  of  service  may  be  very  slight ;  for  the  making  tea, 
milking  cows,  or  doing  any  household  work  at  the  command 
of  the  parent,  is  esteemed  quite  sufficient  to  constitute  the 
relationsliip  of  master  and  servant,  when  the  girl  is  residing 
with  her  father  and  mother  ;  ^  and  the  right  of  action  once 
clear,  damages  far  in  excess  of  the  loss  of  service  are  recov- 
erable. Thus  will  justice,  seeing  the  goal  clearl}^  drive 
straight  towards  it,  regardless  of  obstructions ;  either  finding 
an  avenue  or  making  one. 

But  to  render  this  action  maintainable,  the  parent  must 
have  a  genuine  right  to  his  daughter's  services ;  however 
slight  the  services  which  may  be  exacted.  If  therefore  the 
daughter,  at  the  time  she  was  seduced,  was  at  the  head  of  an 
establishment  of  her  own,  and  her  father  was  living  with  her 
as  a  visitor  in  her  own  house,  she  cannot  be  treated  as  holding 
the  subordinate  position  of  a  servant,  and  the  action  will  not 
lie.*  Nor  can  a  parent  sue,  as  the  stricter  rule  is  laid  down, 
where  the  child  is  really  in  the  service  of  another,  and,  by 
permission  of  her  mistress,  comes  home  to  render  slight 
assistance  from  time  to  time.^  Nor  where  the  child  is  seduced 
while  in  the  service  of  another,  and  then  returns  home 
and  remains  there  in  a  state  of  pregnancy.^  But  if  she  is 
away  only  on  a  temporary  visit,  and  still  forms  part  of  lier 
father's  family,  and  makes  herself  serviceable  to  him  while 
she  is  at  home,  such  temporary  absence  constitutes  no  impedi- 

i  firinnell  v.  Wells,  7  M.  &  Gr.  1033.  Cole,  10  Mo.  6-34 ;  2  Kent  Com.  205, 

2  Harris  v.  Butler,  2  M.  &  W.  539.  12tli  ed.,  and  cases  cited. 

3  1  Addison  Torts,  698,  701 ;  Bennett         «  Manley  v.  Field,  7  C.  B.  n.  s.  96. 
V.  Allcott,  2  T.  R.  166 ;  Tliompson  v.         5  Thompson  v.  Ross,  5  Hurl.  &  Nor. 
Ross,  5  Hurl.  &  Nor.  16;   Manvell  v.  16;  Hedges  v.  Tagg,  L.  R.  7  Ex.  283; 
Thomson,  2  Car.  &  P.  303;  Vossel  v.  Blaymire  v.  Halev^  6  M.  &  W.  55. 


6  Davies  v.  Williams,  10  Q.  B.  725. 


360 


CHAP.  IV.]         child's   injuries   AND   FRAUDS.  §  261 

ment  to  an  action  by  the  father  for  damages.^  In  a  word, 
the  question  is  whether  there  was,  at  the  time  the  injury  was 
committed,  a  hoiia  fide  relation  of  constructive  service  be- 
tween parent  and  child,  which  suffered  by  tlie  wrongful  act  of 
the  defendant. 

This  rule  of  constructive  service  is,  however,  carried  very 
far.  There  is  a  late  New  Jersey  case,  where  it  appeared  in 
evidence  that  the  daughter  was  about  twenty-two  years  of 
age  when  seduced,  and  was  living  a  part  of  the  time  with  her 
brother,  who  occupied  a  farm  about  a  mile  from  her  father, 
and  part  of  the  time  with  her  father.  While  the  rule  was 
fully  approved  that  the  father  and  daughter  must  have  stood 
in  the  relation  of  master  and  servant  at  the  time  the  injury 
was  committed,  it  was  further  held  that  it  was  not  necessary 
that  the  daughter  should  be  in  the  actual  service  of  the  father 
at  the  time  of  the  seduction,  if  the  relation  of  master  and 
servant  then  existed  between  them  ;  in  other  words,  that  the 
service  rendered  need  not  be  house  service,  nor  service  from 
day  to  day,  but  that  any  accustomed  service  lost  by  the  in- 
jury would  sustain  the  action.^  So  in  a  recent  English 
case  the  plaintiff's  daughter,  being  under  age,  left  his  house 
and  went  into  service.  After  nearly  a  month  the  master  dis- 
missed her  at  a  day's  notice,  and  the  next  day,  on  her  wa}'" 
to  her  father's  house,  the  defendant  seduced  her.  It  was 
held  that  as  soon  as  the  real  service  was  terminated  by  the 
master,  whether  rightfully  or  wrongfully,  the  girl  intending 
to  return  home,  the  right  of  the  father  to  her  services  re- 
vived, and  that  there  was,  therefore,  sufficient  evidence  of 


1  Griflatlis  V.  Teetgen,  15  C.  B.  344  ;  The  rule  in  Virginia  is  more  strict.  Lee 
28  E.  L.  &  Kq.  371.  See  further,  1  Ad-  v.  Hodges,  13  Gratt.  726.  In  New  York, 
dison  Torts,  G'dS  ;  Evans  y.  Walton,  L.  the  doctrine  of  Martin  r.  Payne,  9  Johns. 
R.  2  C.  P.  615.  387,  and  other  eases,  led  to  much  con- 

2  Sutton  V.  Huffman,  82  N.  J.  L.  58.  fusion,  by  permitting  suits  to  be  brought 
And  see  Greenwood  v.  Greenwood,  28  where  there  was  in  reality  no  loss  of 
Md.  370;  Ellington  v.  Ellington,  47  service  sustained.  But  in  the  later 
Miss.  329 ;  Emery  v.  Gowen,  4  Me.  33.  cases  the  courts  have  returned  to  the 
In  these  and  some  other  cases  tliere  is  strictness  of  the  English  rule.  Bartley 
a  manifest  tendency  to  exclude  a  pre-  v.  Richtmeyer,  4  Comst.  38.  And  cf. 
sumption  of  emancipation,  so  as  to  earlier  and  later  notes  to  2  Kent  Com. 
leave  the  parent's  remedy  unimpaired.  205. 

361 


§  2^1  THE  DOMESTIC   RELATIONS.  [PAET  III. 

service  to  maintain  an  action  for  the  seduction.^  This,  the 
court  aamitled,  was  carrying  the  doctrine  of  constructive 
service  very  far.  "  The  action,  no  doubt,  is  founded  on  the 
special  ground  of  loss  of  service  (this  is  not  ver}'-  creditable, 
perhaps,  to  our  law),  but  the  action  is  substantially  for  the 
aggravated  injury  that  the  father  has  sustained  in  the  seduc- 
tion of  the  child."  2  These  cases  illustrate  the  generous  dis- 
position with  which  the  courts  uphold  a  parent's  right  of 
action  in  seduction  suits;  and  it  is  here  probably  that  the 
bounds  should  be  placed  to  this  rule  of  a  daughter's  service 
entitling  the  parent  to  sue  for  damages.^ 

It  is  not  necessary  that  the  daughter  should  be  under  age 
in  order  that  the  parent  may  maintain  the  action  for  seduc- 
tion. The  important  question  is,  whether  emancipation  in 
fact  had  taken  place  at  the  time  of  the  injury ;  for  if  the  rela- 
tion of  master  and  servant  exists  between  the  father  and 
his  grown-up  daughter,  however  this  relation  may  have  been 
created,  the  right  of  action  is  complete.*  And  even  where  a 
married  woman,  separated  from  her  husband,  returned  to  her 
father's  house  and  lived  with  him,  performing  various  acts  of 
service,  it  was  held  that,  as  against  a  wrong-doer,  it  was  suffi- 

1  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  Enticing  one's  daughter  away  for  the 
599  ( 1868).  And  see  Evans  v.  Walton,  purpose  of  prostitution,  or  concubinage, 
L.  R.  2  C.  P.  615.  or  seduction,  is  made  an  indictable  of- 

2  Per  Cockburn,  C.  J.,  in  Terry  i;.  fence  in  some  States.  Slocum  i-.  People, 
Hutciiinson,  L.  R.  3  Q.  B.  599.  90  111.  274 ;  State  v.  Breice,  27  Conn. 

3  Where  tiie  father  verbally  agrees  319;  Wood  v.  State,  48  Ga.  192  ;  Boyce 
that  his  daugliter  shall  reside  as  ser-  v.  People,  55  N.  Y.  644  ;  Bowers  v. 
vant  in  a  stranger's  family  for  a  certain  State,  29  Ohio  St.  542;  Galvin  v. 
number  of  years,  this  does  not  debar  Crouch,  65  Ind.  56.  And  see  Bishop 
his  riglit  to  recover  for  her  seduction  and  otiier  general  writers  on  Criminal 
during  lier  minority  by  her  employer's  Law  and  Torts.  The  female,  under 
son.  Mohry  v.  Hoffman,  86  Penn.  St.  such  statutes,  ought  in  general  to  be 
358.  Cf.  White  v.  Murtland,  71  III.  of  good  repute  for  chastity  previous  to 
252.  the  offence,  and  unmarried.  But  stat- 
in other  words,  the  father  may  sue  utes  differ.  See  State  i'.  Jones,  16  Kan. 

per  quod  viherQ  he  does  not  relinquish  608.  The  woman  might  have  reformed, 
the  daughter's  services,  but  retains  the  Illicit  intercourse  alone  does  not  con- 
right  to  command  them,  though  she  re-  stitute  what  is  known  as  seduction, 
sides  elsewliere.  Mohry  v.  Hoffman,  People  r.  Clark,  33  Mich.  112. 
supra;  Blagge  v.  Ilsley,  127  Mass.  191.  *  1  Addison  Torts,  700;  Sutton  v. 
Very  slight  service  at  home  every  Huffman,  3  2  N.J.  L.  58  ;  Greenwoods. 
Sunday,  where  the  daugliter  is  em-  Greenwood,  28  Md.  370 ;  Stevenson  v. 
ployed  by  another,  suffices.  Kennedy  Belknap,  6  Iowa,  97 ;  Wert  v.  Strouse, 
V.  Shea,  110  Mass.  147.  38  N.  J.  L.  184. 
362 


CHAP.  IV.]         child's    injuries   AND   FRAUDS.  §  261 

cient  to  prove  that  there  was  the  relationship  of  master  and 
servant  de  facto.^  So  where  one  stands  in  loco  parentis,  he 
may  recover  damages,  as  an  actual  parent  would  ;  as  in  the 
case  of  an  orphan  living  with  a  relation,  or  a  friend  and  bene- 
factor, and  rendering  such  domestic  attendance  and  obedi- 
ence as  is  usually  rendered  by  a  daughter  to  her  father.^ 
But  the  parent  cannot  maintain  an  action  for  the  seduction 
of  a  daughter  over  twenty-one  and  working  out  on  her  own 
account.^  And  while,  as  surviving  parent,  the  mother  might 
sue  for  her  daughter's  seduction  under  circumstances  show- 
ing service  rendered  her,  it  is  held  that  a  mother  cannot 
maintain  an  action  for  the  seduction  of  her  daughter  while 
the  father  was  alive,  though  the  illicit  offspring  was  not  born 
until  after  the  father's  death.* 

The  wrongful  act  for  which  the  parent  sues  must  be  the 
natural  and  direct  cause  of  the  injury  for  which  damages  are 
sought,  and  the  damages  recoverable  its  necessary  and  proxi- 
mate consequence.  To  this  principle  is  to  be  referred  a  curi- 
ous case  in  New  York.^  But  mental  illness  directly  resulting 
from  the  injury  is,  of  itself,  sufficient  to  support  an  action  for 
loss  of  services  ;  and  such  a  suit  might  be  maintainable,  not- 
withstanding seduction  was  followed  neither  by  pregnancy 
nor  sexual  disease.^ 

1  Harper  v.  Luffkin,  7  B.  &  C.  387.    Fullerton,  4  III.  App.  282;  Furman  v. 

2  1   Addison   Torts,    700;    Irwin   v.     Van  Sise,  56  N.  Y.  435. 

Dearman,  11  East,  23;  Edmondson  v.  But   not  one  in  whose  household  a 

Maeliell,  2  T.  R.  4  ;  Williams  v.  Hutch-  girl    stays    temporarily    without    any 

inson,    3    Comst.    312 ;    Miiguinay    v.  definite   agreement   of  service.     Blan- 

Saudek,  5  Sneed,  140;   Ball  «.  Bruce,  chard  i'.  Ilsley,  120  Mass.  487. 

21  111.  161.  A  grandfather  standing  in  loco  paren- 

^  George  u.  Van  Horn,  9  Barb.  53.3.  lis,   and   with   due  rights    and   obliga- 

*  VossL'l  w.  Cole,  10  Mo.  634  ;  Gray  tions,  may  thus  sue.     Certwell  i;.  Hoyt, 

V.  Durland,  50  Barb.  100.     Statutes  en-  13  N.  Y.  Supr.  57-5. 

larging  the  rights  of  married  women  5  Knight  v.  Wilcox,    14  N.  Y.  413. 

sometimes  extend  the  mother's  action.  See  Eager  v.  Grimwood,   1  Exch.  61; 

Badgley  w.  Decker,  44  Barb.   577.     A  Boyle  r.  Brandon,   13  M.  &  W.    738; 

widowed  mother,  whose  minor  child  is  Keddie    v.    Scoolt,  Peake,  240;  1  Ad- 

actually  in  her  service,  has  the  right  of  dison  Torts,  701,    as    to    the  various 

action.     Gray  v.  Darland,  51  N.  Y.  424.  grounds  of  defence  in  seduction  suits. 

A  mother  remarried   may  have  the  ^  Manvell  v.  Thomson,  2  Car.   &  P. 

right  to  sue.     Lampman  v.  Hammond,  303 ;    Seager  v.   Sligerland,    2   Gaines, 

3  Thomp.  &  C.  293.     See    Hobson  v.  219 ;  Abrahams  v.  Kidney,  104  Mas3. 

222. 

363 


§  262  THE   DOMESTIC   RELATIONS.  [PART   III. 

Where  a  person  hires  a  girl  as  a  servant  for  the  purpose  of 
withdrawing  her  from  her  family  and  seducing  her,  this  is  fraud, 
and  the  parent's  right  of  action  is  not  thereby  forfeited  ;  for  in 
such  a  case  the  new  relation  of  master  and  servant  is  not  bona  fide 
created,  and  the  former  relation  may  be  held  to  have  continued.^ 

§  262.  Damages  in  Parental  Suits  for  Injury  to  the  Child. — 
As  to  the  amount  of  damages,  cases  of  seduction  stand  on  a 
peculiar  footing.  The  ground  of  action  is  the  loss  of  ser- 
vices ;  yet  the  rule  is  well  established  that  neither  this  nor 
the  medical  expenses  are  all  that  the  parent  can  recover. 
Lord  Ellenborough,  in  his  day,  declared  the  principle  invet- 
erate, and  not  to  be  shaken,  that,  in  estimating  damages,  the 
jury  might  go  beyond  the  mere  loss  of  service,  and  give 
damages  for  the  distress  and  anxiety  of  mind  which  the 
parent  had  sustained  in  being  deprived  of  the  society  and 
comfort  of  his  child. ^  So  must  the  situation  in  life  and  cir- 
cumstances of  the  parties  be  taken  into  consideration.^ 
These  principles  are  applied  both  in  England  and  America. 

In  other  suits,  such  as  for  enticement,  the  measure  of 
damages  applied  is  liberal,  though  the  rule  is  somewhat  con- 
flicting in  different  States.  It  is  a  general  principle  that 
where  servants  are  enticed  away,  or  forcibly  abducted,  the 
jury  ma}^  award  ample  compensation  for  all  the  damage  re- 
sulting from  the  wrongful  act.*     A  parent  can  recover  dam- 

1  Speight  V.  Oliviera,  2  Stark.  435 ;  corrupted  by  lier  example."  Bed- 
2  Kent  Com.  205;  1  Addison  Torts,  ford  n.  M'Kovvl,  .3  Esp.  120.  And  see 
699  ;  Dain  v.  WyckoflT,  18  N.  Y.  45.  Robinson  v.  Burton,  5-  Harring.  335 ; 

2  Irwin  !'.  Dearnian,  11  East,  23.  Klopfer    v.    Bromrae,     26    Wis.    372; 

3  Andrews  v.  Askey,  8  Car.  &  P.  9.       Pence  v.  Dozier,  7  Biisli,   133  ;   Dain  i-. 
"In  point  of  form,"    observes  Lord     Wyckoff,  18  N.  Y.  45  ;   Wliite  v.  Murt- 

Eldon,  "  the  action   only  purports   to  land,  71  111.  250.     See  further,  on  this 

give   a    recompense    for  loss    of  ser-  subject.  White  r.  Campbell,  13  Gratt. 

vice  ;  but  we  cannot  shut  our  eyes  to  573  ;    Sellars  v.  Kinder,  1   Head,   184  ; 

the  fact  that  it  is  an  action  brought  by  1  Addison   Torts,  703;  Eager  v.  Grim- 

a  parent  for  an  injury  to  her  child,  and  wood,    1    Exch.     61;     Richardson    v. 

the  jury  may  take   into  their  consider-  Fouts,  11  Ind.  466  ;   Reed  v.  Williams, 

ation   all   that  she  can    feel   from   the  5  Sneed,  580;   Vossel  i'.  Cole,   10  Mo. 

nature  of   the   loss.     They   may   look  634;   2  Kent  Com.   205,   9th    ed.    n.  ; 

upon   her  as   a  parent  losing  the  com-  Bigelow  on  Torts, 
fort,  as   well   as    the   service,   of    lier         *  Gunter  v.  Astor,  4  Moore,  15;  1 

daughter,  in  whose  virtue  she  can  feel  Addison  Torts,  704 ;  Lundey  v.  Gye,  2 

no  consolation;   and  as  the  parent  of  El.   &  Bl.   216;  Magee  v.  Holland,  3 

other  children  whose  morals  may  be  Dutch.  86. 

364 


CHAP.  IV.]         child's   injuries    AND   FRAUDS.  §  263 

ages  for  the  prospective  value  of  the  services  of  a  young 
child  permanently  injured  or  killed  by  an  act  of  negligence  ;  ^ 
and  a  reasonable  expectation  of  pecuniary  benefit  is  favor- 
ably considered  where  the  parent  is  old  and  infirm.^  Med- 
ical expenses  for  the  care  and  cure  of  the  child  are  of  course 
recoverable.  And  even  the  expense  of  the  mother's  sick- 
ness, which  was  caused,  in  an  extreme  case,  by  the  shock  to 
her  feelings,  has  been  treated  as  a  proper  item  of  special 
damage.^  So,  it  would  seem,  are  the  costs  of  prosecuting 
the  suit.^  But  the  parent  cannot  recover  for  lacerated  feel- 
ings, as  well  as  for  other  injuries  personal  to  the  child,  as  in 
seduction  suits.^  But  local  statutes  will  sometimes  affect 
the  question  of  damages  here  as  well  as  the  right  of  action 
itself.6 

§  263.  Parental  Liability  -where  the  Child  is  the  Injuring 
Party.  —  Second.  As  to  the  parent's  liability  to  action,  where 
the  child  is  the  injuring  party.  The  question  is  sometimes 
asked,  how  far  a  father  is  responsible  in  damages  for  the 
torts  and  frauds  of  his  infant  child.  We  have  already  seen 
that  the  husband's  responsibility  for  his  wife's  injuries  at  the 
common  law  is  founded  upon  his  right,  by  marriage,  to  her 
entire  property.  Very  different  is  the  relation  of  parent  and 
child,  where,  it  is  now  plain,  the  father  has  little  more  than 
the  right  to  claim  his  child's  wages,  so  far  as  the  infant's 
property  is  concerned.''  Yet  some  have  been  misled  into  the 
belief  that  tlie  two  cases  are  entirely  analogous  ;  and  they 

1  Supra,  §  259;  Drew  i-.  Sixth  Ave-  ^  Duckworth  v.  Jolinson,  4  H.  &  N. 

nue  R.   R.  Co.,  20  N.  Y.  40;   Ford  y.  653;  Franklm  y.  South  Eastern  R.,  3  H. 

Monroe,    20    Wend.    210;    Hoover  r.  &  N.  211. 

Heim,  7  Watts,  H2  ;  FrankUn  v.  South-  3  pord  v.  Monroe,  20  Wend.  210. 

eastern  R.  R.  Co.,  3   Hurl.  &  Nor.  211.  «  Wilt  v.  Vickers,  8  Watts,  227. 

But    see    Willinms   y.    Hutchinson,    3  ^  Penn.  R.  R.  Co.  v.  Kelly,  .31  Penn. 

Comst.    311.     For  tlie  loss  of   service  St.  372;  Sawyer  r.  Sauer,  10  Kan.  519; 

for   the   remainder    of    the   period  of  Cowden    v.    Wriglit,    24    Wend.  429. 

minority,  a  parent  may  usually  recover  But    see,  as    to    battery    of    a  child, 

if  such  loss  necessarily  result;  while  if  Klingman  v.  Holmes,  54  Mo.  304. 
the   injury   continue  beyond    that   pe-  ^  M'Carthy  v.  Guild,  12  Met.  291; 

riod  the  right  is  usually  in  the  cliild.  Kennard  v.  Burton,  25  Me.  39. 
Traver  v.  Eiglitli  Avenue  R.,  4   Abb.  ?  Nor  can  the  parent  make  the  infanjb 

App.   422;    McDowell    v.    Georgia  R.,  child's  real  estate  itself  ha  hie,  even  for 

GO  Ga.   320;  Houston  R.  u.  Miller,  49  a   necessary  debt  of  his  own  creation. 

Tex.  322.  Cox  v.  Storts,  14  Bush,  502. 

365 


§  2G3  THE   DOMESTIC   RELATIONS.  [PART   III. 

would  hold  the  father  liable  for  his  son's  wrongful  acts,  as  a 
husband  for  the  wife's.  It  is  held  in  Pennsylvania  that  the 
father  may  be  sued  in  trespass  for  an  injury  committed  by 
his  son,  Avhen  they  ride  together  in  the  father's  team,  and 
the  act  is  committed  in  the  latter's  presence.^  Whether  the 
principle  can  be  safely  carried  farther  is  extremely  doubtful. 
In  Missouri,  on  the  other  hand,  and  with  better  reason,  it  is 
decided  that  a  father  is  not  responsible  for  an  assault  com- 
mitted by  his  infant  son,  without  his  sanction  ;  not  even 
though  the  child  was  known  by  him  to  be  of  a  vicious 
temper.^  The  same  rule,  with  more  caution,  has  been  applied 
in  New  York,  in  a  case  where  it  was  shown  that  a  minor 
daughter,  in  her  father's  absence,  and  without  his  authority 
or  approval,  wilfully  set  his  dog,  not  ordinarily  a  vicious 
animal,  upon  the  plaintiff's  hog,  which  was  thereby  bitten 
and  killed.^ 

For  such  injuries  an  infant  is  answerable  at  law,  out  of  his 
own  estate  ;  at  least,  if  he  is  old  enough  to  have  known 
better.*  But  how  as  to  the  parent's  liability?  For  that  is 
the  present  issue.  The  principles  of  the  Roman  law  cannot 
be  cited  to  much  advantage,  in  support  of  such  liability,  on 
the  score  of  agency,  or  otherwise ;  since  under  that  sj'stem, 
the  child  was  little  better  than  the  slave  of  his  father ;  and 
even  as  to  slaves,  it  was  considered  at  the  time  of  the  Insti- 
tutes that  it  would  be  very  unjust,  when  a  servant  did  a 
wrongful  act,  to  make  the  master  lose  anything  more  than 
the  servant  himself.^  The  modern  rule  of  the  civil  law,  in 
European  countries,  is  to  make  every  person  responsible  for 
injuries  caused  by  the  act  of  persons  and  things  under  his 
dominion  ;  but  a  father  incurs  no  responsibility  for  the  act  of 

1  Strohl  I'.  Levari,  39  Penn.  St.  177.  property  on  fire,  in  Edwards  v.  Crurae, 

And   see   Lashbrook  v.  Patten,  1  Du-  13  Kan.  848.     See  also  Paulin  v.  How- 

vall,  316.  ser,   63   111.   312 ;    Chandler  v.  Deaton, 

-  Baker  v.  Haldeman,  24  Mo.  219 ;  37   Tex.   406.     The   want  of  parental 

Paul  ('.  Hummel,  43  Mo.  119.  knowledge  or  sanction  here  appeared. 

3  Tifft  V.  Tifft,  4   Denio,  175.     And  *  Campbell  v.  Stakes,  2  Wend.  137  ; 

see  McManus  v.  Crickett,  1   East,  106  ;  "  Infancy,"  post. 
Foster  v.  Essex  Bank,  17  Mass.  479.  ^  Smith's  Diet.   Greek  and  Roman 

Nor  was  the  father  held  liable  in  Antiq.  "  Novalis  Actio."    Inst.  lib.  4, 

damages  where  his  son  set  another's  tit.  8,  by  Saunders. 

366 


CHAP.    IV.]         child's   injuries   AND   FRAUDS. 


§  263 


his   minor  child,  if  he   can  prove  that  he  was    not  able  to 
prevent  the  act  which  gives  rise  to  the  liability.^ 

On  the  whole  it  may  be  stated  as  a  rule  that  a  father  is 
not  liable  in  damages  for  the  torts  of  his  child,  committed 
without  his  knowledge,  consent,  or  sanction,  and  not  in  the 
course  of  his  employment  of  the  child. 


1  Civil  Code  France,  art.  1384; 
Cleaveland  v.  Mayo,  19  La.  414.  See 
Baker  v.  Haldeman,  24  Mo.  219. 

This  point  received  some  attention 
in  a  modern  English  case,  wiiere  the 
father  of  a  young  man,  about  seven- 
teen or  eigiiteen,  was  sued  for  trespass 
and  false  imprisonment.  Tiie  plaintiff 
was  property-man  at  a  theatre,  of 
wliicli  tlie  defendant  was  lessee.  The 
young  man,  minor  son  of  tlie  defend- 
ant, acted  as  his  father's  treasurer. 
The  plaintiff,  in  his  character  of  prop- 
erty-man, presented  to  the  treasurer  an 
account,  containing  some  wrongful 
items  of  disbursement.  The  defend- 
ant, conceiving  this  to  be  an  inten- 
tional fraud  on  the  part  of  the  plain- 
tiff, dismissed  him  from  his  employ- 
ment. His  son  thereupon,  without 
consulting  the  father,  indiscreetly 
caused  the  plaintiff  to  be  apprehended 
by  a  policeman,  and  taken  to  tlie  sta- 
tion on  a  charge  of  obtaining  money  by 
false  pretences.  Tiie  plaintiff  went  be- 
fore a  magistrate,  and  was  remanded, 
but  Avas  ultimately  discharged.  After 
the  remand,  the  son  told  his  father 
what  he  had  done ;  the  latter  did  not 
prohibit  him  from  proceeding  in  the 
matter,  but  said  that  as  the  son  had 


begun  it,  he  would  not  interfere.  The 
court  decided  that  these  facts  showed 
neither  a  previous  autiiority  nor  subse- 
quent ratification  by  the  father,  suffi- 
cient to  render  liim  liable  for  his  son's 
conduct,  and  on  that  ground  dismissed 
tlie   suit.     Moon  v.    Towers,   8   C.   B. 

N.  S.611. 

The  opinions  of  the  several  judges  in 
this  case,  though  expressed  by  way  of 
dicta,  exhibit  considerable  reluctance 
to  hold  the  father  liable,  as  a  trespas- 
ser, for  his  son's  torts.  Says  Willes,  J., 
approved  by  Byles,  J.,  ib.  :  Williams, 
J.,  dab.,  "  The  tendency  of  juries, 
where  persons  under  age  have  incurred 
debts,  or  committed  wrongs,  to  make 
their  relatives  pay,  should,  in  my  opin- 
ion, be  cliecked  by  the  courts.  No 
man  ought,  as  a  general  rule,  to  be 
responsible  for  acts  not  his  own."  And 
says  the  Chief  Justice  :  "  Suppose  the 
son  had  knocked  the  plaintiff  down, 
and  the  fixther  had  said,  '  I  think  it 
served  him  right,'  would  that  be  such 
a  ratification  of  the  son's  act  as  to 
make  the  father  liable  as  a  trespasser  ?  " 
Per  Erie,  C.  J.,?&.  As  to  the  injuries 
of  a  servant,  and  his  master's  liability, 
see  "  Master  and  Servant,"  i7i/ra. 


367 


26-1  THE  DOMESTIC   EELATIONS.  [PAET   lU. 


CHAPTER  V. 

DUTIES    AND   EIGHTS     OF    CHILDREN",   WITH    EEFERENCE    TO 
THEIR  PARENTS. 

§  264.  General  Duties  of  Children  to  Parents. —  "  The  duties 
of  children  to  their  parents,"  says  Blackstone,  "  arise  from  a 
principle  of  natural  justice  and  retribution.  For  to  those 
who  gave  ns  existence  we  naturally  owe  subjection  and  obe- 
dience during  our  minority,  and  honor  and  reverence  ever 
after ;  they  who  protected  the  weakness  of  our  infancy  are 
entitled  to  our  protection  in  the  infirmity  of  their  age ;  they 
who  by  sustenance  and  education  have  enabled  their  offspring 
to  prosper  ought  in  return  to  be  supported  by  that  offspring  in 
case  they  stand  in  need  of  assistance."^  Upon  this  principle 
rest  whatever  duties  are  enjoined  upon  children  to  their  pa- 
rents by  positive  law.  The  Athenians  compelled  children  to 
provide  for  their  father  when  fallen  into  poverty.^  And 
Kent,  enforcing  the  same  precept,  cites  several  other  histori- 
cal precedents  less  to  the  purpose.^ 

Perhaps  this  principle  could  not  have  been  better  expressed 
than  in  these  words  of  Blackstone  ;  but  it  is  to  be  observed 
that  the  obligation,  as  a  legal  one,  is  somewhat  vague  and  in- 
definite, extending  little  farther  than  the  succor  of  parents  in 
distress.  Gratitude,  certainly,  is  what  all  parents  true  to  their 
trust  have  the  right  to  expect ;  but  whether  it  is  due  to  those 
who  Avere  negligent  and  unfaithful  to  their  offspring  may 
admit  at  this  day  of  much  doubt.  In  other  words,  honor  and 
reverence  are  justly  awarded  according  to  one's  deserts.  The 
child,  when  full  grown,  naturally  marries  and  assumes  paren- 
tal liabilities  of  his  own ;  and  in  the  usual  course  of  things 

1  1  Bl.  Com.  4.53.  8  2  Kent  Com.  207. 

2  2  Potter's  Antiq.  347-351. 

368 


CHAP,  v.]       DUTIES   AND   RIGHTS    OF    CHILDREN.  §  265 

adults,  whether  father  or  son,  will  prudent!}-  provide  for  their 
future  as  well  as  their  present  wants.  Some  have  thouglit  it 
the  duty  of  fathers  to  leave  property  to  their  children  at 
their  death,  —  a  principle  somewhat  at  conflict  with  this  right 
to  lean  upon  their  children  for  their  own  maintenance.  Yet 
exceptional  cases  must  occur  where  a  father,  faithful  to  his 
own  obligations,  is  3'et  left,  through  misfortune,  penniless  in 
his  old  age  ;  and  here  the  voice  of  nature  bids  the  children 
aid,  comfort,  and  relieve.  Municipal  law  quickens  the  child, 
and  says,  "If  your  parent,  however  vagabond  and  worthless, 
becomes  unable  to  maintain  himself,  the  public  shall  not  re- 
lieve him  as  a  pauper  ;  you,  his  children,  being  of  sufficient 
means,  must  assume  the  burden."  We  speak  not  here  of  the 
mother,  whose  moral  claims  upon  her  children,  if  her  own 
husband  prove  incapable,  are  much  stronger  ;  yet  it  must  be 
admitted  that  the  municipal  law  makes  no  great  distinction 
on  her  behalf. 

§  265.  Whether  Child  may  be  Legally  Bound  to  Support  Pa- 
rent;  Statutes.  —  Thus  may  be  explained  what  appears  now  a 
well-settled  rule  at  the  common  law ;  namely,  that  there  is 
no  legal  obligation  resting  upon  a  child  to  support  a  parent ; 
that,  while  the  parent  is  bound  to  supply  necessaries  to  an 
infant  child,  an  adult  child,  in  the  absence  of  positive  statute, 
or  a  legal  contract  on  his  own  part,  is  not  bound  to  supply 
necessaries  to  his  aged  parent.^ 

But  statutes  have  been  enacted,  both  in  England  and  most 
parts  of  the  United  States,  to  enforce  this  imperfect  legal 
oV)ligation,  usually  to  the  extent  of  relieving  cities  and  towns 
from  the  support  of  paupers.  Such  is  the  tenor  of  the  Eng- 
lish statutes  of  43  Eliz.  and  5  Geo.  I.,  to  which  allusion  has 
already  been  made,  which  declare  in  effect  that  the  children, 
being  of  sufficient  ability,  of  poor,  old,  lame,  or  impotent  per- 
sons, not  able  to  maintain  themselves,  must  relieve  and  main- 
tain them.^  Ingratitude,  to  use  the  word  in  a  more  general 
sense,  the  parent  may  punish  still  further,  as  other  statutes 

1  Eeeve  Dom.    Rel.    284;    Rex    r.  N.   H.  558;  Stone  v.  Stone,  32  Conn. 

Munden,  1  Stra.  190  ;  Edwards  v.  Davis,  142  ;  Becker  v.  Gibson,  70  Ind.  239. 
16  Johns.  281 ;  Lebanon  v.  Griffin,  45         2  Supra,  ch.  2  ;  2  Kent  Com.  208. 
24  369 


§  2G6  THE   DOMESTIC   DELATIONS.  [PAET   III. 

prescribe,  by  disinheriting  the  unclutifal  children  b^'  will  ;^  a 
punisiiment  found  by  no  means  terrible  in  cases  which  arise 
under  the  statute  of  Elizal^eth.  The  moral  obligation  of 
honor  and  reverence  still  remains  clear  and  unquestioned,  so 
far  as  parental  faithfulness  has  earned  it ;  doubtful  in  its  more 
extended  application  ;  yet  always  a  favorite  theme  of  the 
poet  and  dramatist;  and  never  to  be  lightly  esteemed  among 
men. 2 

The  law  does  not  imply,  then,  a  promise  from  the  child  to 
pay  for  necessaries,  furnished  without  his  request  to  an  indi- 
gent parent;  and  the  natural  obligation  can  only  be  enforced 
in  the  mode  pointed  out  by  statute.^  The  promise  of  a  child 
to  pay  for  past  expenditures  in  relief  of  an  indigent  parent  is 
not  Ijinding  in  law.^  But  for  necessaries  or  other  goods  fur- 
nished to  the  parent,  or  for  the  parent's  benefit,  at  a  grown 
child's  request,  the  latter  is  chargeable,  as  any  one  else  would 
be.^  And  it  is  held,  further,  that  where  one  of  several  chil- 
dren renders  support  at  the  request  of  the  others,  they  will 
be  liable  on  an  implied  promise  to  contribute.^  So  much, 
then,  for  the  duties  of  children. 

§  266.  Rights  of  Children  in  General.  —  The  rights  of  chil- 
dren with  reference  to  their  parents  may  be  considered  more 
at  length.  We  have  already  had  occasion  to  observe  that 
the  child  may  to  a  certain  extent  bind  the  parent  as  agent, 
not  only  for  necessaries,  but  in  some  other  transactions,  where 

1  N.   Y.   Rev.    Sts.  p.  614 ;  2  Kent  wards  v.  Davis,  16  Johns.  281 ;  Dawson 

Com.  208  ;  and  see  Ex  parte  Hunt,  5  v.  Dawson,  12  Iowa,  512.    See  Johnson 

Cow.  284.  V.  Ballard,  11  Rich.  178. 

-  No   one   can  read   "  King  Lear "  *  Mills    v.    Wyman,    3  Pick.    207 ; 

without  recognizing   the  suhlimity   of  Cook   v.    Bradley,   7  Conn.  57.     It   is 

an   unquestioning  faith  in   this  moral  otherwise  by  the  Civil  Code  of  Louisi- 

duty,     Kent  (2  Com.  207)  quotes  the  ana,  art  245. 

speech  of  Euryalus  in  the  ^neid;  but  °  Lebanon  v.  Griffin,  45  N.  H.  558; 

the  instance  of  pins  yEneas  himself  is  Gordon  v.  Dix,  106  Mass.  305 ;  Becker 

still  stronger,  perhaps  the  strongest  to  v.  Gibson,  70  Ind.  2.39.     Such  a  claim 

be  found  in  the  classics  ;  devotion  to  might  now   be  enforced,  in  a  suitable 

his   aged   father   rendering  him   more  case,  against  the  separate  estate  of  a 

illustrious    in    song    than    his    heroic  married  daughter,  on  the  usual  prin- 

achievements,  and,  largely  atoning,  as  ciples  applicable  to  her  contracts, 

some  would  say,  for  the  sin  of  conjugal  <J  Stone  ;•.  Stone,  32  Conn.  142.    And 

unfoithfulness.  see  Succession  of  Olivier,  18  La.  Ann. 

3  Rex  V.  Munden,  1  Stra.  190  ;  Ed-  594 ;  Marsh  v.  Blackman,  50  Barb.  329. 

370 


CHAP.  Y.]       DUTIES   AND   RIGHTS    OF   CHILDREN.  §  267 

the  child  acts  within  the  scope  of  authority  properly  con- 
ferred. But  general  transactions  require  proof  of  actual 
authority  ;  and  a  son  has  ordinarily  no  more  right,  as  such, 
to  lend  his  father's  goods  than  a  stranger.^  And  proof  that 
in  one  instance  the  use,  b}^  a  son,  of  his  father's  name  upon 
negotiable  paper  discounted  at  a  bank,  was  known  and  acqui- 
esced in  by  the  father,  is  not  proof  that  the  son  was  author- 
ized to  sign  subsequent  notes  in  the  same  manner.^  The 
principles  of  agency  are  here  applied.^ 

§  267.  The  Emancipation  of  a  Child.  —  A  father  may  eman- 
cipate his  young  child  and  thus  give  him  a  right  to  his  own 
earnings.  What,  then,  is  emancipation  as  used  with  refer- 
ence to  the  child  ?  Plainly,  the  term  emancipation  is  bor- 
rowed from  the  Roman  law,  and  may  be  referred  to  the  old 
formalit}'  of  enfranchisement  b}'  the  father.  This  in  ancient 
times  was  done  by  an  imaginary  sale,  but  Justinian  substi- 
tuted the  simpler  proceeding  of  manumission  before  a  magis- 
trate.* In  Louisiana,  the  emancipation  of  minors  is  exjoressly 
recognized  and  regulated  by  law.^  At  the  English  law,  the 
term  "  emancipation  "  is  generally  used  with  reference  to  mat- 
ters of  parochial  settlement  and  the  support  of  paupers.^ 
But  in  American  cases  it  often  has  a  significance  more  nearly 
approaching  that  of  the  civil  law  ;  though  we  are  apt  to  use 
the  word  without  much  regard  to  precision. 

We  find  in  the  English  books  little  said  as  to  the  emancipa- 
tion of  minor  children  by  their  fathers.  In  fact,  the  English 
municipal  system  is  so  different  from  ours,  that  the  paternal 
authority  during  the  period  of  minority,  except  as  to  custody, 
gives  rise  to  little  controversy.  But  there  is  a  case  where  an 
infant  was  held  not  to  have  been  emancipated  by  his  enlist- 
mentJ  And  in  this  and  some  other  instances  the  principle 
of  emancipation  was  somewhat  discussed  ;  and  the  doctrine 

1  Johnson  v.  Stone,  40  N.  H.  197 ;  *  Burrill  Law  Diet.  "  Emancipa- 
supra,  §  241.    But  see  Bennett  v.  Gillett,     tion  ;  "  Bouvier,  ih. ;  Inst.  1,  12. 

3  Minn.  423.  5  Code,  art.  367  et  seq. 

2  Greenfield  Bank  v.  Crafts,  2  Allen,         «  gee  7  Q.  B.  574,  «. 

269.  "  Rex  v.  Rotherfield  Grays,  1  B.  & 

3  See  also  Sequin  v.  Peterson,  45  Vt.     C.  347. 
255  ;  supra,  §  253. 

371 


§  2(j1  a,  THE   DOMESTIC    RELATIONS.  [PART   HI. 

has  been  maintained  b}^  Lord  Kenyon  and  others,  that  during 
the  minority  of  tlie  child  he  will  remain,  under  almost  any 
circumstances,  unemancipated  ;  that  in  fact  there  can  be  no 
emancijiation  of  an  infant  unless  he  marries,  and  so  becomes 
himself  the  liead  of  a  family,  or  contracts  some  other  relation, 
so  as  to  wholly  and  permanently  exclude  the  parental  control.^ 

Emancipation  is  not  so  strictly  construed  in  this  country. 
The  American  doctrine,  as  frequently  stated,  is  that  a  father 
may  "  emancipate  "  his  child  for  the  whole  remaining  period 
of  minorit}^  or  for  a  shorter  term  ;  that  this  emancipation 
may  be  by  an  instrument  in  writing,  l)y  verbal  agreement  or 
license,  or  b}--  implication  from  his  conduct ;  and  that  emanci- 
pation is  valid  against  creditors,  and  to  some  extent  against 
the  father.'^  Let  us  see  then,  first,  how  emancipation  may  in 
this  country  be  legally  brought  about ;  second,  what  is  its 
legal  effect. 

§  267  a.  How  a  Minor  Child  is  Emancipated  ;  Parental  Relin- 
quishment of  Right  to  Earnings.  —  And  first,  emancipation  may 
be  either  l)y  instrument  in  writing  or  by  parol  agreement,  or 
it  may  be  inferred  from  the  conduct  of  the  parent.  As  to 
instruments  in  writing,  usually  known  as  indentures,  the 
statutes  of  the  different  States  are  quite  explicit ;  and  the 
same  general  doctrines  apply  to  children  who  are  bound 
out  as  to  apprentices  generally.^  But  such  deeds,  so  far  as 
they  derogate  from  the  child's  personal  independence  and 
welfare,  are  not  greatly  favored  ;  they  are  usually  construed 
with  great  strictness  as  between  the  minor  and  his  parent, 
guardian,  or  master  ;  and  the  policy  of  Anierican  law  is  to 
require  the  consent  of  the  child  himself  to  the  instrument, 
where  he  has  passed  the  period  of  nurture.^ 

1  Eex  y.  Roacli,  6  T.  R.  247;  Rex  infra;  Nickerson  v.  Easton,  12  Pick. 
V.  Wilmington,  -5  B.  &  Ad.  525.  110. 

2  Abbott  V.  Converse,  4  Allen,  530,  *  The  minor  child  of  pauper  parents 
per  Chapman,  J. ;  2  Kent  Com.  191,  ??. ;  is  not  emancipated  so  as  to  gain  a  set- 
Whiting  V.  Earle,  3  Pick.  201  ;  Bur-  tlement  by  tlie  indenture  of  the  select- 
lingame  v.  Biirlingame,  7  Cow.  92 ;  men.  Frankfort  v.  New  Vineyard,  48 
Varney  v.  Young,  11  Vt.  258;  Rush  v.  Me-  565.  But  an  indenture  inoperative 
Vought,  55  Penn.  St.  437.  against  the  child  by  reason  of  infor- 

^  4  Com.  Dig.  579  ;  State  v.  Taylor,  mality  may  yet  afford  proof  that  the  pa- 
2  Penning.  467;  Bolton  v.  Miller,  6  rent  meant  to  relinquish  the  child's  earn- 
Ind.  262.     See  "  Master  and  Servant,"     inga.    Kerwin  v.  Wright,  59  Ind.  369. 

372 


CHAP,  v.]       DUTIES   AND   EIGHTS    OF   CHILDREN.  §  267  a 

Next  as  to  emancipation  by  parol  agreement  or  license  of 
the  parent.  In  a  well-considered  Massachusetts  case,  it  is 
decided  that  the  emancipation  of  a  minor  child  by  parol 
agreement  and  without  considei-ation  is  revocable,  until  acted 
upon.^  Yet  tliere  can  be  little  doubt  at  the  present  day  that 
a  father  can  verbally  sell  or  give  his  minor  son  his  lime  ;  and 
that  after  payment  or  performance  the  son  is  entitled  to  his 
earnings.^  A  special  contract  with  a  third  person,  authoriz- 
ing him  to  employ  and  pay  the  child  himself,  will  bind  the 
parent,  and  payment  to  the  child  will  be  a  defence  against 
any  action  brought  by  his  father  against  the  employer.  Parol 
agreements  are,  however,  within  the  statute  of  frauds.^ 

Emancipation,  strictly  so  called,  is  not  to  be  presumed  ;  it 
must  be  proved.  Where  it  appears  that  the  father,  by  parol, 
places  his  daughter  in  a  certain  family,  that  by  the  terms  of 
the  agreement  the  employer  ma}^  turn  her  away  when  dissat- 
isfied, that  the  father  may  rescind  the  contract  at  pleasure, 
and  reclaim  his  daughter  ;  these,  and  similar  circumstances, 
may  be  sufficient  to  entitle  the  cliild  to  her  own  wages  for 
the  time  being,  but  they  cannot  constitute  emancipation  as 
against  the  father.^  We  are  to  distinguish,  in  fact,  between 
a  license  for  the  child  to  go  out  and  work  temporarily,  and 
the  more  formal  renunciation  of  parental  rights.  Thus,  if 
the  father  agrees  to  pay  his  son  so  much  for  every  day  he 
would  labor  for  another,  but  Avithout  intending  to  give  him 
his  time,  and  merely  as  an  incentive  to  industry,  this  is  not 
to  be  construed  into  a  contract  of  emancipation,  but  rather  as 
a  mere  gratuity  to  encourage  the  son  in  the  formation  of 
industrious  and  useful  habits.^  But  other  circumstances  may 
raise  a  special  contract  on  the  minor's  behalf,  or  indeed  be 
held  to  emancipate  him  altogether.  It  is  a  well-settled  rule 
in  this  country  that  if  the   parent  absconds,  turns  his  child 

1  Abbott  V.  Converse,  4  Allen,  530.  Metz,  2  Watts,  406 ;  Corey  v.  Corey,  19 
See  Morris  v.  Low,  4  Stew.  &  Port.  123.     Pick.  29. 

But  see  Chase  v.  Smith,  5  Vt.  550.  3  Sliute  v.  Dorr,  5  Wend.  204. 

2  Sluitc  r.  Dorr,  5  Wend.  204  ;  Sned-  *  Sumner  r.  Sebec,  3  Me.  223.  See 
iker  r.  Everingliam,  3  Dutch.  1 13  ;  Gale  Clark  v.  Fitch,  2  Wend.  459 ;  Clinton 
V.  Parrott  1  N.  H.  28  •  United  States  v.  v.  York,  2G  Me.  167. 

s  Arnold  v.  Norton,  25  Conn.  92. 
373 


§  267  a  THE   DOMESTIC    RELATIONS.  [PAP.T   Til. 

out  of  doors,  or  leaves  him  to  sliift  for  himself,  the  son  is  en- 
titled to  his  own  wages  ;  ^  and  our  courts  are  very  liberal 
in  allowing  children  to  avail  themselves  of  any  hreacli  of 
parental  obligation  so  as  to  earn  an  honest  livelihood  by  their 
own  toil.^  The  presumption  raised  in  such  cases  may  be 
termed  a  presumption  of  necessity.  So  where  the  husband 
abandons  his  child  to  the  care  of  liis  mother,  his  subsequent 
claims  for  the  earnings  of  either  are  to  be  regarded  with  very 
little  favor. ^  Or  where  he  is  able  to  support  the  child,  and 
yet  forces  the  child  to  labor  abroad  unsuitably  to  the  child's 
social  position.^  Even  slighter  circumstances," which  impute 
no  misconduct  to  the  father,  but  evince  a  consent  for  his  son 
to  leave  the  parental  roof  and  go  into  the  world  to  seek  his 
own  fortune,  are  often  construed  into  emancipation.^  But 
the  desertion  of  a  minor  from  his  fatlier's  home,  with  vagrancy 
and  crime,  does  not  of  itself  constitute  emancipation.^  And 
there  may  be  complete  emancipation,  although  the  minor  con- 
tinues to  reside  with  his  fatlier."  In  general,  according  to 
modern  American  authorities,  a  parent's  relinquishment,  by 
agreement  and  consent,  of  all  claim  to  the  earnings  of  his 
minor  child  in  any  particular  service,  may  be  implied  from 
circumstances.^ 

1  And  an  insolvent  fatlier  may  give  231  ;  Dicks  v.  Grissom,  1  Freem.  Ch. 
his  son  his  time  and  future  earnings,  so  428;    Dodge    v.  Favor,    15  Gray,  82; 
as  to  benefit  the  child  as  against  the  Boobier  v.  Boobicr,  .39  Me.  406.     But 
father's  own  creditors.    Atwood  v.  Hoi-  see  Stiles  t.  Granville,  6  Cush.  458. 
comb,  39  Conn.  270 ;  supra,  §  252.  ^  Bangor  v.  Readfield,  32  Me.  66. 

2  Clinton  v.  York,  26  Me.  167  ;  Cloud  ^  M'Closky  v.  Cypliert,  27  Penn.  St. 
V  Hamilton,  11  Humph.  104;  Nightin-  220;  Dierker  v.  Hess,  54  Mo.  246. 
gale  r.  Withington,  15  Mass.  275  ;  Stans-  ^  Supra,  §  252,  261;  Monaghan  v. 
bury  L'.  Bertron,  7  W.  &  S.  362  ;  Everett  Scliool  District,  .38  Wis.  100 ;  Dierker 
V.  Siierfey,  1  Iowa,  -356 ;  The  Etna,  v.  Hess,  .54  Mo.  246.  And  this  doctrine 
Ware,  462  ;  Gary  v.  James,  4  Desaus,  is  applied  the  more  strongly  as  against 
185;  Conovar  v.  Cooper,  3  Barb.  115;  a  parent's  creditors  and  others,  who, 
Jenison  v.  Graves,  2  Blackf.  440  ;  Lyon  against  the  will  of  both  parent  and 
V.  Boiling,  14  Ala.  753;  Ream  v.  Wat-  cliild,  maintain  that  the  child's  earn- 
kins,  27  Mo.  516.  ings  are  not  his  own.    The  proof  should 

3  Wodell  V.  Coggeshall,  2  Met.  89.  be  sufficient  and  clear  as  against  the  pa- 
See  Dennysville  v.  Trescott,  30  Me.  rent  who  denies  such  relinquishment. 
470.  Monaghan  v.  School  District,  38  Wis. 

*  Farrell  v.  Farrell,  3  Houst.  633.  100.     And  see  72  Me.  509. 

5  Campbell  v.   Campbell  3  Stockt.  Remarriage  of  a  widowed   mother, 

268;  Johusou  v.  Gibson,  4  E.  D.  Smith,     whose  new  husband  does  not  assume 


Oi 


4 


CHAP,  v.]      DUTIES   AND   RIGHTS   OF   CHILDREN.  §  268 

The  marriage  of  an  infant,  with  his  parent's  consent,  re- 
moves him  from  parental  control,  and,  we  may  jiresume,  gives 
him  a  right,  as  against  the  father,  to  apply  all  his  earnings  to 
the  support  of  his  fumilj^ ;  but  whether  all  the  consequences 
of  legal  emancipation  must  necessarily  follow  is  doubtful.^ 
Marriage,  without  the  consent  of  the  parent,  ought  to  confer 
the  same  right  upon  an  infant,  inasmuch  as  the  claims  of 
wife  and  child  in  either  case  are  paramount,  and  the  conse- 
quences of  all  marriages  are  much  the  same  ;  but  in  Maine 
it  has  been  decided  otherwise,  and  that  the  disobedient  infant 
is  punishable  by  being  compelled  to  pay  his  father  his  earn- 
ings ;  though  what  is  to  become  of  the  wife  meantime  does 
not  clearly  appear.'^  A  minor  daughter  is  emancipated  by 
her  marriage  with  her  father's  consent ;  and  here,  at  least,  it 
is  ruled  that  consent  may  be  inferred  from  circumstances.^ 

§  268.  Effect  of  Minor  Child's  Emancipation  or  Relinquish- 
ment.—  Second,  As  to  the  effect  of  emancipation.  The 
consequence  is  on  the  one  hand  to  give  the  child  the  right  to 
his  own  wages,  the  disposal  of  his  own  time,  and,  in  a  great 
measure,  the  control  of  his  own  person  ;  on  the  other  hand 
to  relieve  the  parent  of  all  legal  obligation  to  support.*  More- 
over, the  emancipated  child's  earnings  go  to  his  administrator 
upon  his  decease,  to  be  distributed  according  to  law.^ 

A  father  may  give  to  his  son  a  part  as  well  as  the  whole 
period  of  his  minority,  in  which  case  the  rights  of  the  latter 
are  limited  accordingly.^  If  the  father  receives  his  son's 
earnings  after  giving  the  son  his  time,  it  will  be  a  good  con- 
sideration for  any  promise  from  the  father.'^     And  he  cannot 

the    paternal    functions    towards    the         ^  Bucksport    v.  Rockland,    56   Me. 

chihl,  favors  the  idea  of  emancipation.  22. 

Hollingswortli  v.  Swedenborg,  49  Ind.  *  Nightingale     v.    Withington,     15 

378.    A  widowed  niotlier  may   relin-  Mass.  272 ;  Corey  i'.  Corey,  19  Pick.  29  ; 

quish  all  claim.     Lind  v.  Sullestadt,  21  HoUingsworth  v.  Swedenborg,  49  Ind. 

Hun,  364.    But  as  to  a  second  marriage  378;  Varney   v.  Young,  11    Vt.    258; 

atfecting  the  child's  pauper  settlement,  Johnson  v.  Gibson,  4  E.  D.  Smith,  231. 
see  Hampden  v.  Troy,  70  Me.  484.  5  Smith  v.  Knowlton,  11  N.  H.  191. 

1  Taunton  v.  Plymouth,  15  Mass.  6  Tillotson  v.  M'Crillis,  11  Vt.  477. 
203;  Dicks  v.  Grissom,  1  Freem.  Ch.  And  see  Winn  v.  Sprague,  35  Vt.  243; 
428.  supra,  §  2.52. 

2  "White  V.  Henry,  24  Me.  531.    See         "^  Jenney  v.  Alden,  12  Mass.  375. 
Burr  V.  Wilson,  18  Tex.  367. 

375 


§  269  THE   DOMESTIC   RELATIONS.  '    [PART   IH. 

sue  for  the  services  of  such  son  performed  within  the  period 
embraced  by  the  agreement,  although  lie  has  given  notice  to 
the  party  employing  the  son  not  to  pay  his  wages  to  him.^ 
Nor  can  the  father's  creditors  attach  such  earnings,  or  prop- 
erty which  was  purchased  therewith  for  the  infant's  benefit.^ 
But  the  child  sues  in  such  case  for  his  own  wages.^  And  if 
he  is  actually  emancipated  by  his  father,  and  an  express 
promise  is  made  to  pay  him  for  his  labor,  with  the  consent  of 
his  father,  no  other  notice  of  his  emancipation  is  necessary  to 
charge  the  defendant  and  enable  the  minor  to  sue.^  In 
brief,  the  minor  who  is  released  from  his  father's  service 
stands  as  to  his  contracts  for  labor  either  with  strangers  or 
with  him,  upon  the  same  footing  as  if  he  had  arrived  at  full 
age  ;  and  such  being  the  case,  the  father  may  himself  con- 
tract to  employ  and  pay  the  child  for  his  services,  and  be 
bound  in  consequence  like  any  stranger  to  fulfil  his  agree- 
ment.^ 

§  269.  Rights  of  Full-grown  Children.  —  A  child,  on  arriving 
at  full  age,  becomes  emancipated.^  But  whether  son  or 
daughter,  the  child,  by  continuing  with  the  parent  and  living 
at  the  same  home,  may  still  be  legally  in  the  service  of  the 
parent.  On  this  point  there  is  no  dispute  ;  but  in  settling 
the  presumptions  of  law  there  is  apparently  some  conflict  of 
authorities.     Thus,  where  the  parent  sues  for  loss  of  services 


1  Morse  v.  Welton,  6  Conn.  547  ;  The  earnings  of  an  emancipated  child 
Wodell  V.  Cnggeshall,  2  Met.  89 ;  Bray  cannot  be  attaclied  by  trustee  process 
V.  Wlieeler,  29  Vt.  514.  for  tlie  fatlier's  dubts.     Manciifster  v. 

2  Cliase  V.  Elkins,  2  Vt.  290;  Weeks  Smith,  12  Pick.  113.  And  see  Bray  v. 
V.  Leigliton,  5  N.  H.  343 ;  M'Cioskey  v.  Wheeler,  29  Vt.  514. 

Cyphert,  27  Penn.  St.  220;  Bobo  v.  The  father  cannot  retract  his  con- 
Bryson,  21  Ark.  387  ;  Lord  v.  Poor,  23  sent  tliat  the  child  shall  have  his  own 
Me.  569  ;  Lyon  y.  Boiling,  14  Ala.  753;  wages  after  the  wages  are  earned.  Tor- 
Johnson  V.  Silsbee,  49  N.  H.  543  ;  Dier-  rens  i'.  Campbell,  74  Penn.  St.  470. 
ker  V.  Hess,  54  Mo.  246 ;  Lind  v.  Sulle-  ^  gteel  v.  Steel,  12  Penn.  St.  64 ; 
stadt,  21  Hun,  364.  As  to  an  infant's  Hall  v.  Hall,  44  N.  H.  293.  An  eman- 
suits,  see  post.  Part  V.  c.  6.  And  see  cipated  child  ceases  to  follow  the  settle- 
Benziger  y.  Miller,  50  Ala.  206.  Recov-  mcnt  of  his  father,  Orneville  v.  Glen- 
ery  by  the  son  in  a  suit  would  bar  an  burn,  70  Me.  353. 

action  by  the  father.     Scott  v.  White,  *=  2   Kent   Coin.   206  ;    Poultney   v. 

71  111.  287.  Glover,  23  Vt.  328 ;  Hardwick  v.  Paulet, 

3  Ream  v.  Watkins,  27  Mo.  516.  36  Vt.  320 ;  supra,  §  252> 
*  Wood  V.  Corcoran,  1  Allen,  405. 

376 


CHAP,  v.]       DUTIES   AND    RIGHTS    OF    CHILDREN.  §  269 

because  of  the  seduction  of  a  grown-up  or  minor  daughter, 
a  strong  disposition  is  frequently  manifested  to  rule  against 
complete  emancipation  so  as  to  give  damages.  Where,  how- 
ever, tlie  conflict  is  between  parent  and  an  adult  child,  over 
work  done  for  a  stranger,  the  tendency  is  in  favor  of  com- 
plete emancipation,  and  to  allow  the  child,  attained  to  full 
age,  tlie  right  to  control  his  own  wages  ;  this  being  for  his 
benefit. 

If  a  child,  after  arriving  at  the  age  of  twenty-one  years, 
then,  continues  to  live,  labor,  and  render  service  in  the  father's 
family,  with  his  knowledge  and  consent,  but  without  any 
agreement  or  understanding  as  to  compensation,  the  law 
raises  no  presumption  of  a  promise  to  enable  the  cliild  to 
maintain  an  action  against  the  father  to  recover  compensa- 
tion.i  The  presumption  here  is,  that  the  parties  do  not  con- 
template a  payment  of  wages  for  services  on  the  one  hand, 
nor  a  claim  for  board  and  lodging  on  the  other.  For  where 
the  relation  of  parent  and  child  exists,  the  law  will  not 
readily  assume  that  of  debtor  and  creditor  likewise.  But 
this  presumption  may  be  overthrown,  and  the  reverse  estab- 
lished, by  proof  of  an  express  or  implied  contract ;  an  implied 
contract  being  proven  by  facts  and  circumstances  which  show 
that  both  parties,  at  the  time  the  services  were  performed, 
contemplated  or  intended  pecuniary  recompense.^  The  decla- 
rations of  parents  in  matters  of  this  sort,  if  somewhat  vague, 
are  not  apt  to  be  construed  in  the  child's  favor.  And,  on  the 
other  hand,  the  presumption  is  equally  against  regarding  the 
services  of  a  father  who  lives  with  his  son  and  does  work  for 
him,  as  rendered  for  compensation;  although,  here,  too,  the 

1  Dye  V.  Kerr,  15  Barb.  444  ;  Lipe  v.  Bank,  74  111.  259  ;  Pellage  v.  Pellage, 

Eisenlerd,   82  N.   Y.   229 ;  Hosteller's  32  Wis.  136. 

Appeal,  30  Penii.  St.  473;  Ridgway  v.  -  Miller  r.  Miller,  IG  111.  296;  Fitch 

English,  2  N.  J.  409;  Amlover  v.  Merri-  v.  Peckham,  16  Vt.  150;   Hart  v.  Hart, 

mack  County,  37  N.  11.437;  Williams  41  Mo.  441  ;  Updike  v.  Ten  Broeck,  3 

V.   Barnes,  3    Dev.    348;    Prickett    ;;.  Vroom,  105;  Freeman  i-.  Freeni;in,  65 

Prickett,  5  C.  E.  Green,  478;  Perry  y.  111.   106;  Van   Schoyek  v.   Backus,  16 

Perry,  2  Dnv.  (Ky.)  312;  Ileywood  v.  N.  Y.  Supr.  68;  Hill.ish  v.  Ililbish,  71 

Brooks,  47  N.   H."  231 ;  Wilson  v.  Wil-  Ind.  27  ;  Steel  v.  Steel,  12  Penn.  St.  66; 

son,  52  Iowa,  44,  Gardner  v.  Schooley,  Kurtz  v.  Ilibner,  55  111.  514.    The  child 

25  N.  J.  Eq.  15U,  Guffia  v.  First  Nat.  may  sue  on  a  quantum  meruit.    Frier- 

377 


§  270  THE   DOMESTIC   RELATIONS.  [PART   III. 

reverse  might  be  established  by  evidence  of  a  contract.^ 
Circumstances  which  show  an  unusual  burden  assumed  by 
the  son,  or  special  advantages  reaped  by  the  father,  are  some- 
times favorably  construed  in  the  child's  favor.  As  where  a 
grown-up  son  purchases  his  father's  farm  and  continues  to 
support  the  father  and  an  adult  idiot  brother  upon  it.^  So 
where  the  adult  son  assumes  entire  control  and  management 
of  the  business,  works  the  farm,  and  adds  largely  to  the 
family  profits  by  his  extraordinary  skill.^  So  where  the  son 
takes  a  deed  of  the  farm  on  his  agreement  to  support  his 
parents  there  for  the  rest  of  their  lives.^  Such  cases  are  by 
no  means  uncommon  among  the  enterprising  settlers  of  our 
Western  country,  who  cultivate  the  soil  and  live  in  little 
colonies ;  and  American  courts  cannot  be  insensible  to  the 
merits  of  young  persons  who  adorn  the  filial  relation.  As  to 
use  and  occupation  of  real  estate,  where  the  occupant  is  the 
son  of  the  owner,  it  is  held  that  while  payment  of  rent  may 
be  presumed,  slight  evidence  is  sufficient  to  show  the  con- 
trary.^ But  the  rule  in  some  of  the  older  States  is  rather 
strict  as  against  inferring  that  either  support  or  service  can 
create  a  debt.*^ 

§  270.  Gifts,  &c.,  and  Transactions  between  Parent  and  Child.  — 
Gifts  between  members  of  the  same  family  are  not  greatly  to 
be  favored  ;  and  as  to  the  father's  alleged  gift  to  his  child,  the 
presumption  must  be  strongly  in  favor  of  the  father's  con- 
tinued possession  as  head  of  the  family.  Yet  where  there  is 
sufficient  proof  of  a  gift  from  father  to  child,  fully  executed  by 
delivery,  it  will  be  upheld  as  irrevocable.'''  Such  a  gift  should 
be  perfected  in  order  to  be  sustained  afterwards  against  him. 
The  parent's  promise  to  give  cannot  be  enforced  on  the  child's 
behalf  against  him  or  his  estate,  on  a  mere  consideration  of  love 

muth  V.  Frierniutli,  46  Cal.  42  ;  Swartz  *  Pratt?'.  Pratt,  42 Mieh.  174 :  Brown 

V.  ITazU'tt,  8  Cal.  118.     See  Tremont  v.  v.  Knapp,  79  N.  Y.  136. 
Mount  Desert,  36  Me.  390;  Leidig  v.  &  See  Oakes  v.  Cakes,  16  111.  106; 

Coover's  Ex'rs,  47  Penn.  St.  534.     But  Hays  v.  Seward,  24  Ind.  3u2.     And  see 

see  Putnam  v.  Town,  34  Vt.  429.  Whipple  v.  Dow,  2  Mass.  415. 

1  Hams  V.  Currier,  44  Vt.  468.  ^  Davis  v.  Goodenow,   27  Vt.  717; 

2  House  V.  House,  6  Ind.  60.  Seavey  v.  Seavey,  37  N.  H.  125. 

'  Adams  v.  Adams,  23  Ind.  50.    And  "•  Kellogg  v.  Adams,  51  Wis.  138. 

see  Fisher  v.  Fisher,  5  Wis.  472. 

378 


CriAP.  v.]       DUTIES   AND   RIGHTS   OF   CHILDREN.  §  270 

and  affection.  But  the  parent  in  equity  may  settle  property 
on  his  cliiklren  as  well  as  his  wife,  upon  principles  elsewhere 
discussed.^  And  if  a  valuable  consideration  be  interposed, 
the  settlement  is  supported  more  firmly ;  and  specific  per- 
formance of  an  executory  promise  to  transfer  may  be  in  some 
instances  decreed.''* 

On  the  other  hand,  while  an  adult  child  may  make  a  bind- 
ing transfer  or  conveyance  of  property  to  the  parent,  any 
such  transfer  by  way  of  gift  or  improvident  contract,  made 
just  after  attaining  majority,  or  while  in  general  under  undue 
parental  control  and  influence,  will  be  jealously  regarded  by 
courts  of  equity.^  The  same  doctrine  holds  true  of  a  trans- 
fer or  conveyance  to  an  adult  child,  tainted  with  undue  influ- 
ence over  an  aged  or  infirm  parent.  All  famil}^  arrangements 
of  the  filial  kind,  whether  child  or  parent  be  the  weaker 
party  should,  in  order  to  stand  firmly,  be  free  from  fraud  or 
undue  influence  on  both  sides,  and  made  in  good  faith ;  or 
equity  will  readily  set  them  aside.* 

To  support,  however,  a  general  contract  between  a  parent 
and  his  adidt  child,  as  against  strangers,  a  slight  consideration 
is  often  held  sufficient.  And  a  deed  of  personal  property 
from  parent  to  cliild,  the  parent  not  being  indebted  at  the 
time,  by  which  it  is  agreed  that  the  parent  shall  keep  posses- 
sion during  life,  is  not  considered  void.^  So  it  is  held  that  a 
bond  executed  by  a  son  to  his  parent  for  $500,  with  interest 
semi-annuall}^  if  demanded,  is  on  valuable  consideration,  suf- 
ficient to  sustain  a  conveyance  of  land  as  a  purchase.^  And 
even  a  deetl  from  a  parent  to  a  child  for  the  consideration  of 
love  and  affection  is  not  absolutely  void  as  against  creditors. 
The   want  of  a  valuable   consideration  may  be  a  badge  of 

1  Supra,  Part  II,  c.  14.  3  g^e  Guardian  and  Ward,  post,  Part 

.  2  As    where   a    writing   declared  a  IV.  c.  9. 

valuable  consideration  for  the  promise  *  Taylor  ?•.  Staples,  8  R.  I.  170 ;  Var» 

to  convey  land,  and  actual  entry  and  Donge  v.   Van  Donge,  23   Mich.  321 ; 

improvement  liad  taken  place  upon  the  Rider  v.  Kelso,  53  Iowa,  367 ;  Miller  v. 

faith  of  the  contract.     Hagar  ?'.  Hagar,  Simonds,  72  Mo.  669  ;  Jacox  v.  Jacox, 

71  Mo.  GIO.    And  see  Hiatt  v.  Williams,  40  Mich.  473. 

72  Mo.  214 ;  Kurtz  v.  Hibner,  55  111.  ^  Bohn  v.  Headley,  7  Har.  &  J.  257 ; 
514.  Shepherd  v.  Bevin,  9  Gill.  o2. 

^  Jackson  v.  Peek,  4  Wend.  300. 

379 


§  271  THE   DOMESTIC    RELATIONS.  [PAUT   III. 

fraud ;  but  if  so,  it  is  only  presumptive,  not  conclusive,  evi- 
dence of  it,  and  may  be  met  and  rebutted  by  opposing 
evidence.^  This  is  the  American  rule ;  but,  as  we  have  seen, 
the  statutes  of  Elizabeth  with  reference  to  voluntarj-  settle- 
ments do  not  receive  a  uniform  interpretation  in  our  State 
courts.  There  are  doubtless  circumstances  under  which  a 
father's  voluntary  settlement,  whether  upon  minor  or  adult 
children  would  be  set  aside  as  a  fraud  upon  subsequent,  and 
still  more  upon  existing  creditors.^ 

Where  a  son  purchases  and  stocks  a  farm  as  a  home  for  an 
indigent  father,  who  resides  and  labors  thereon,  the  products 
are  not  subject  to  attachment  as  the  son's  property.^  On  the 
other  hand,  where  a  parent  permits  the  child  to  receive  and 
invest  his  earnings,  the  benefit  of  the  investment  belongs  to 
the  child,  especially  as  against  creditors  of  the  father.*  And 
in  some  States,  a  minor  child  who  improves  and  settles  a 
tract  of  land  with  the  father's  permission  ma}^  acquire  a  title 
by  making  valuable  improvements  as  effectually  as  if  he  were 
of  age.^ 

§  271.  Same  Subject ;  English  Cases.  —  The  English  cases  are 
few  as  to  transactions  strictly  between  parent  and  child ; 
and  these  turn  chiefly  upon  trusts  and  family  settlements. 
There  are  recent  cases  where  the  transactions  of  children 
with  fortunes  have  been  set  aside  in  equity,  for  undue  influ- 
ence exerted  over  them  by  their  parents.  Thus  a  mortgage 
and  subsequent  sale  by  a  son  just  arrived  at  full  age,  effected 
under  the  father's  influence,  and  to  his  own  injury,  has  been 

1  Hinde's  Lessee  v.  Longvvorth,  11  the    latter's  knowledge   and   consent. 

Wheat.  213  ;  Seward  v.  Jackson,  8  Cow.  B3-ers  v.  Thompson,  66  111.  421 ;  Kurtz 

406;  Haines  r.  Hnines,  6  Md.  435.  v.  Hibner,  55  111.  514;    Hillebrands  v. 

2  See  si'pm,  §§  185-188.  And  see  Car-  Nibbelink,  44  Mich.  413. 
ter  v.  Grimshaw,  49  N.  H.  100 ;  Wilson  v.  3  Brown  v.  Scott,  7  Vt.  57. 

Kolillieim.  4<i  Miss.  346;  Kaye  u.  Craw-  *  Campbell  v.  Campbell,  3  Stockt. 

ford,  22  Wis.  820  ;  Monell  v.  Scherrick,  268  ;  Stovall  v.  Johnson,  17  Ala.    14  ; 

54  III.   260 ;   Gardner  v.  Schoolej',  25  Wilson  v.  McMillan,  62  Ga.  10. 
N.  J.  Eq.  150  ;  Guffin  v.  First  National  8  Galbraith  v.  Black,  4  S.  &  R.  207. 

Bank,  74  111.  2-59.    No  express  contract  See  Jenison  v.  Graves,  2  Blackf.  441. 

need  be  proved  to  enable  a  son  to  re-  But  see   Bell  v    Hallenback,   Wright, 

cover   from    jiis   father's   estate   for  a  751  ;  Fonda  v.  Van   Home,  15   Wend, 

house  built  by  the  son  on  the  father's  631 ;  Brown  v.  M'Donald,   1    Hill  Ch. 

land  in  the  lifetime  of  the  latter,  with  297. 

380 


CHAP,  v.]      DUTIES   AND   EIGHTS   OF   CHILDREN.  §  272 

annulled. 1  So  with  a  gift  from  child  to  parent,  though  not 
unless  a  suit  to  set  the  gift  aside  be  instituted  in  due  time.^ 
The  principle  of  equity  is,  that  if  there  be  a  pecuniary  trans- 
action between  parent  and  child,  just  after  the  child  attains 
the  age  of  twenty-one  years,  and  prior  to  what  may  be  called 
a  complete  emancipation,  without  any  benefit  moving  to  the 
child,  tlie  presumption  is,  that  an  undue  influence  has  been  ex- 
ercised to  procure  that  liability  on  the  part  of  the  child ;  and 
that  it  is  tlie  business  and  the  duty  of  the  party  who  endeavors 
to  maintain  such  a  transaction,  to  show  that  such  presump- 
tion is  adequately  rebutted  ;  but  that  the  presumption  may 
always  be  removed.^  On  the  other  hand,  in  transactions  be- 
tween members  of  the  same  family,  even  though  that  relation 
subsists  between  them,  from  whence  the  court  will  infer  the 
moral  certainty  of  the  existence  of  considerable  influence, 
and  the  probability  of  its  having  been  exercised,  yet  if  the 
transaction  be  one  that  tends  to  the  peace  or  security  of  the 
family,  to  the  avoiding  of  family  disputes  and  litigation,  or 
to  the  preservation  of  the  family  property,  the  principles  by 
which  such  transactions  must  be  tried  are  not  those  applicable 
to  dealings  between  strangers,  but  such  as  on  the  most  com- 
prehensive experience  have  been  found  to  be  most  for  the 
interest  of  families.* 

S  272.  Advancements  and  Distributive  Shares ;  Expectancies 
of  Heirs.  —  If  the  father,  during  his  lifetime,  makes  an  ad- 
vancement to  any  of  his  children,  towards  their  distributive 
share  in  his  estate,  the  rule  is  to  reckon  this  in  making  the 

1  Savery  v.  King,  35  E.  L.  &  Eq.  An  imbecile  fatlier  living  with  his 
100.  And  see  Eaker  v.  Bradley,  ib.  grown  children  may  have  a  notice  to 
449.  quit  served  by  delivery  to  one  of  them 

2  Wriglit  V.  Vanderplank,  39  E.  L.  in  such  a  manner  as  to  entitle  tlie  land- 
&  Eq.  147;  Turnery.  Collhis,  L.  R.  7  lord  to  maintain  ejectment  against  the 
Ch.  329.                            ■  father,  to  whom  the   notice  had   been 

s  Archer  v.   Hudson,   7  Beav.  551,  addressed.      Tanham  r.   Nicliolson,  L. 

per  Lord  Langdale.     See  Houghton  v.  R.  5  H.  L.  561.     Mortgage  by   eman- 

Houghton,  11  E.  L.  &  Eq.  134  ;  s.  c.  15  cipated  cliildren  over  age,   to  secure  a 

Beav.  278,  where  this  subject  is  fully  debt  of  their  father,  upheld  in  favor  of 

discussed.     See  also  American  case  of  the  mortgagee,  but  not  in  favor  of  the 

Bergen  v.  Udall,  31  Barb.  9.  father.     Bainbridge  v.  Brown,  50  L.  J. 

*  Master  of   Rolls  in   Houghton  v.  Ch.  522. 
Houghton,  supra. 

381 


§  272  THE   DOMESTIC   RELATIONS.  [PAET   HI. 

distribution.^  In  England,  it  would  appear  that  acts  of  the 
father  have  often  been  so  construed,  under  the  statute  of 
distributions,  with  less  reference  to  intention  of  the  parties 
than  the  requirements  of  equal  justice.  Thus  annuities  are 
reckoned  an  advancement ;  contingent  provisions  ;  large  pre- 
miums for  a  trade  or  profession  ;  and  loans  of  considerable  im- 
portance to  a  son.^  But  small  and  inconsiderable  sums  for  cur- 
rent expenses,  ornaments,  and  the  education  of  children  are  not 
so  reckoned.^  Nor  is  the  payment  to  the  daughter's  husband 
of  .£1,000,  jocularly  stated  by  the  father  to  be  in  exchange  for 
his  snuff-box,  to  be  considered  an  advancement  to  the  daughter.* 
The  rule  in  this  country  does  not  appear  to  be  very  strict  ; 
and  in  some  States  the  statutes  of  distributions,  unlike  those 
of  England,  permit  nothing  to  be  reckoned  as  an  advance- 
ment to  a  child  by  the  father,  unless  proved  to  have  been  so 
intended  and  chargeable  on  the  child's  share  by  certain  evi- 
dence prescribed.^  And  it  is  laid  down  that  whether  a  pro- 
vision of  the  deceased  in  his  lifetime  be  a  gift  or  an  advance- 
ment is  a  question  of  intention  ;  but  that  if  it  was  originally 
intended  by  both  as  a  gift,  it  cannot  subsequently  be  treated 
by  the  father  as  an  advancement,  at  least  without  the  son's 
knowledge  or  consent.^     Yet  it  is  also  ruled  that  if  a  son 


1  2  Redf.  Wills,  908  etseq. ;  Edwards  that  finding  it  was  a  losing  concern  he 

V.  Freeman,  2  P.  Wms.  435.  became    desirous  of  retiring,    but   re- 

^  Smith    V.    Smith,    3    Gif.    26-3;    2  mained  at   the   urgent   request  of  his 

Wms.  Ex'rs,    1385;    Edward   v.   Free-  father  and  continued  the  business  witli 

man,  2  P.  Wms.  435;  2   Redf.  Wills,  reluctance,    sustaining    heavy    losses. 

908,  909 ;  Boyd  v.  Boyd,  L.  R.  4  Eq.  The  father  on  his  death-bed  caused  the 

305.  promissory  note  to  be  burned,  and  died 

'•i  2  Wms.  Ex'rs,  6th  Am.  ed.  1498-  intestate.     It  was  held  that  although 

1505.      And   see    Miller's    Appeal,   40  the  circumstances  under  which  the  note 

Penn.  St.  57.  had  been  destroyed  amounted  to  an  equi- 

*  McClure  v.  Evans,  29  Beav.  422.  table  release  of  the  debt ;  yet,  that  the 

And  see  Stock  v.  McAvoy,  L.  R.  15  sum  whicli  remained  due  on  it  must  be 

Eq.  55.  considered  an  advancement  to  the  son. 

In  a  modern  English   case  a  father  Gilbert  w.  Wetherell,  2  Sim.  &  Stu.  254, 

lent  the   sum  of  £10,000  to  his  son,  to  per  Sir  -John  Leach,  M.   R.     But  see 

assist  liim  in  forming  a  partnership  in  Auster  v.  Powell,  31  Beav.  583,  and  n. 

the   business    of  a   sugar-refiner,   and  And  see  Bennett  v.  Bennett,  L.  R.  10 

took  his    promissory  note   for   the   re-  Ch.  D.  474. 

payment  of  that  sum   on  demand.     It  ^  Osgood  v.  Breed's  Heirs,  17  Mass. 

appeared  tliat  the  son  engaged  m  busi-  356 ;  2  Redf.  Wills,  908,  909. 
ness  at  the  urgent  desire  of  his  father ;         6  Lawson's    Appeal,  23   Penn.   St. 
.^«9 


CHAP,  v.]       DUTIES   AND    EIGHTS    OF    CHILDREN.  §  272 

during  his  father's  life  receipts  for  and  actually  receives  his 
"  full  proportion  "  during  his  father's  life,  he  can  claim  noth- 
ing more  from  the  estate  after  his  father's  death. ^  Advance- 
ments do  not  bear  interest.^ 

Where  the  child  of  a  father  dying  intestate  has  received 
an  advancement,  in  real  or  personal  estate,  and  wishes  to 
come  into  the  general  partition  or  distribution  of  the  estate, 
he  may  bring  his  advancement  into  hotchpot  with  the  whole 
estate  of  the  intestate,  real  and  personal  ;  and  shall  there- 
upon be  entitled  to  his  just  proportion  of  the  estate.  This 
is  the  English  rule,  and  it  prevails  likewise  in  many  of  the 
United  States.^  In  such  case  the  value  of  the  property  at 
the  time  of  advancement  governs  in  the  distribution.*  The 
principle  of  this  rule  is  equality  of  distribution  of  the  ances- 
tor's personal  estate  among  his  children  and  their  descendants. 

The  sale  of  expectant  estates  by  heirs  is  not  to  be  encour- 
aged ;  one  reason  being  that  it  opens  the  door  to  taking  undue 
advantage  of  an  heir  in  distressed  and  necessitous  circum- 
stances ;  the  other  that  public  policy  should  prevent  an  heir 
from  shaking  off  his  father's  authority  and  feeding  his  ex- 
travagance by  disposing  of  the  family  estate.^  The  principle 
was  formerly  laid  down  with  much  emphasis  in  Massachu- 
setts.^    But  the  present  rule  of  chancery  is  to  support  such 


85;  Sherwood  v.  Smith,  23  Conn.  516.  1  Hend,  300;  Fulton  v.  Smith,  27  Ga. 

See  Black  v.  Whitall,  1  Stockt.  572 ;  413 ;  Montgomery  v.  Chaney,  13  La. 

Storey's  Appeal,  83  Penn.  St.  89.  Ann.  207. 

>■  Gushing  t.'.  Gushing,  7  Bush,  259.  3  2  Bl.  Gom.  516;  2  Wms.   Ex'rs, 

2  Osgood  V.  Breed's  Heirs,  17  Mass.  1886  ;   2  Kent  Gom.  421  ;   Jackson  v. 

356;  Nelson  v.  Wyan,  21  Mo.  347.     A  Jackson,  28  Miss.  674  ;  Barnes  v.  Hazle- 

transaction  between  parent  and  child  ton,  50  111.  429. 

may   constitute  a    loan    rather    than  *  gee  Jenkins  v.  Mitchell,  4  Jones 

either  gift  or  advancement.     Bruce  v.  Eq.  207.    For  the  New  York  rule,  see 

Griscom,  16  N.  Y.  Supr.  280.     As  to  Terry  v.  Dayton,  31  Barb.  519 ;  Beebe 

proof  of  an  advancement,  see  Bulkley  v._  Estabrook,  18  N.  Y.  Supr.  523. 

V.  Noble,  2  Pick.  337 ;  and  see  Hart-  6  Per  Lord  Thurlow,  1  Bro.  G.  G. 

welly.  Kice,  1  Gray,  587;  Miller's  Ap-  10;    Go.  Litt.  265  a;  Sugd.   Vendors, 

peal,  40  Penn.  St.  57  ;  Smith  v.  Smith,  314,  and  cases  cited  ;  1  Story  Eq.  Juris. 

59  Me.  214  ;  Vanzant  v.  Davies,  6  Ohio  §§  336-339. 

St.  52;   2   Story   Eq.   Juris.   §   1202;  6  But  see  TrulU-.  Eastman,  3  Met. 

Brown  v.  Burk,  22  Ga.  574;  Cleaver  121;  contra,  Boynton  t'.  Hubbard,  7  Mass. 

V.  Kirk,  3  Met.  (Ky.)  270  ;  Hodgson  v.  112.    See  Varick  v.  Edwards,  1  Hoff.  Gh. 

Macy,  8  Ind.   121 ;   Vaden  v.  Hance,  383 ;  2  Kent  Cora.  475,  and  cases  cited. 

383 


§  272  THE   DOMESTIC   EELATIONS.  [PART   IH. 

sales  to  others,  if  made  bona  fide,  and  for  valuaLle  considera- 
tion ;  and  in  case  of  an  heir  apparent,  if  the  instrument  be 
made  witli  the  knowledge  and  consent  of  the  father. ^ 
Whetlier,  however,  the  son  can  release  to  the  father  himself, 
so  as  to  operate  further  than  as  a  receipt  for  property  ad- 
vanced to  him,  is  more  doubtful.^ 

Where  a  legacy  is  given  by  a  parent  to  his  child,  or  by  one 
in  loco  parentis,  by  way  of  maintenance,  the  child  as  legatee 
is  privileged  in  being  allowed  interest  thereon  from  the  testa- 
tor's death  ;  this  so  as  to  secure  the  child's  prompt  and  full 
support.  And  the  presumptive  right  to  interest  is  held  to 
be  all  the  same,  notwithstanding  the  child  has  no  guardian,^ 
or  the  testator  was  not  obliged  to  render  support ;  ^  but  not 
where  the  will  makes  other  express  provision  for  mainte- 
nance.5 

The  child's  right  of  inheritance  from  his  parent,  it  may 
be  added,  is  strongly  favored  both  in  England  and  America. 
But  while  in  the  former  country  the  eldest  son  is  so  far  pre- 
ferred to  the  other  children  that  he  shall  take  the  whole  real 
estate  by  descent  to  himself,  the  American  rule  is  that  all 
children  shall  inherit  alike,  whether  sons  or  daughters.  And 
a  father's  will  is  to  be  construed  with  favor  to  his  own  off- 
spring ;  indeed,  some  of  our  local  statutes  expressly  provide 
that  when  a  testator  omits  to  provide  for  any  children,  they 
shall  take  the  same  share  of  the  testator's  estate,  both  real 
and  personal,  that  would  have  passed  to  them  if  the  parent 
had  died  intestate,  unless  they  had  other  provision  during 
the  testator's  life,  or  it  clearly  appears  that  the  omission  was 
intentional  on  his  part.^ 


1  Curtis  V.  Curtis,  40  Me.  24.  ham,  106  Mass.  586 ;  Fowler  v.  Colt,  22 

2  See  Robinson  v.  Robinson,  Brayt.  N.  J.  Eq.  44. 

59;   Walker  v.   Walker,  G7   Penn.   St.  *  For  tlie   testator  mifjlit  liave  in- 

18(3.     Tlie  agreement  of  children  with-  tended  support  from  the  legacy.  Brown 

out  their  father's  knowledge  to  release  v.  Knapp,  79  N.  Y.  130. 
all  rights  of  inheritance  in  land  to  one,  ^  In  re  George,  47  L.  J.  Ch.  D.  118. 

if  that  one  would  maintain  the  father  ^  See  Mass.  Gen.  Stats,  c.  92,  §  25; 

for  life,  is  not  against  public  policy,  but  Schoul.  Pers.  Prop.  730,  748  ;   2  Kent 

may  be  upheld  in  equity.     Walker  v.  Com.  421 ;  4  Kent  Com.  471  •  1  Jarm. 

Walker,  ib.  Wills,  5th  Am.  ed.  129,  n. 

3  2  Redf .  Wills,  267 ;  Kent  t-.  Dun- 

384 


CHAP,  v.]       DUTIES   AND   EIGHTS    OF   CHILDREN. 


§274 


§  273.  Stepchildren;  Quasi  Parental  Relation.  —  It  is  well 
settled  that  in  the  absence  of  statutes  a  person  is  not  entitled 
to  the  custody  and  earnings  of  stepchildren,  nor  bound  by 
law  to  maintain  them.^  Yet,  if  a  stepfather  voluntarily  as- 
sumes the  care  and  support  of  a  stepchild,  he  stands  in  loco 
■parentis;  and  the  presumption  then  is,  that  they  deal  with 
each  other  as  parent  and  child,  and  not  as  master  and  ser- 
vant ;  in  which  case  the  ordinary  rules  of  parent  and  child 
will  be  held  to  apply ;  and  consequently  neither  compensa- 
tion for  board  is  presumed  on  the  one  hand,  nor  for  services 
on  the  other.2  So  may  this  quasi  relation  exist  between  the 
child  and  sonie  other  person,  —  such  as  a  grandfather,  — 
and  with  similar  legal  consequences.^  As  to  third  parties,  the 
test  is  whether  one  has  held  out  the  child  as  a  member  of 
his  own  family.* 

§  274.  Claims  against  the  Parental  Estate  for  Services  ren- 
dered. —  Claims  for  services  rendered  to  a  parent,  a  relative, 


1  Tubb  V.  Harrison,  4  T.  R.  118  ;  2 
Kent  Com.  192;  Freto  v.  Brown,  4 
Mass.  675;  Worcester  v.  Marchant,  14 
Pick.  510  ;  supra,  §  237. 

2  Cooper  V.  Martin,  4  East,  77 ;  Wil- 
liams V.  Hutcliinson,  3  Comst.  312; 
Sharp  17.  Cropsey,  11  Barb.  224;  Mur- 
dock  V.  Miirdock,  7  Cal.  511 ;  Gillett  v. 
Camp,  27  Mo.  541 ;  Hiissee  v.  Round- 
tree,  Busbee,  110 ;  Lantz  v.  Frey,  14 
Penn.  St.  201 ;  Davis  v.  Goodenow,  27 
Vt.  715  ;  Brush  v.  Blanchard,  18  111.  46 ; 
St.  Ferdinand  Academy  v.  Bobb,  52 
Mo.  357 ;  Smith  v.  Rogers,  24  Kan. 
140  ;  Mowbry  v.  Mowbry,  64  111.  383. 
As  to  a  stepson  remaining  after  attain- 
ing majority,  see  Wells  v.  Perkins,  43 
V/is.  160. 

3  Hudson  V.  Lutz,  5  Jones,  217 ; 
Butler  V.  Slam,  50  Penn.  St.  456; 
Schrimpf  v.  Settegast,  36  Tex.  296  ; 
Hays  V.  Mc  Conn  ell,  42  Ind.  285  ;  Wind- 
land  V.  Deeds,  44  Iowa,  98.  But  the 
presumption,  as  between  son-in-law 
and  father-in-law,  is  that  they  deal  on 
the  mutual  footing  of  debtor  and  cred- 
itor. Wright  V.  Donnell,  34  Tex.  291 ; 
Schoch  V.  Garrett,  69  Penn.  St.  144 ; 


Rogers  v.  Millard,  44  Iowa,  466.  But 
cf.  supra,  Hus.  &  Wife,  §  71.  All  this  is 
matter  of  evidence  upon  the  facts. 
Coe  V.  Wager,  42  Mich.  49. 

*  St.  Ferdinand  Academy  v.  Bobb, 
52  Mo.  357. 

As  to  an  adopted  child,  the  doctrine 
in  loco  parentis  applies  as  to  services 
and  wages.  Brown  v.  Welsh,  27  N.  J. 
Eq.  429.  See  supra,  §  232.  In  the  case 
of  distant  relatives  and  strangers,  the 
presumption  that  one  goes  to  live  in 
the  household  on  the  footing  of  mem- 
ber of  the  family  instead  of  servant 
is  less  strong  than  where  one  is  a 
child  ;  and  this  presumption  is  more 
readily  overcome  by  circumstantial 
evidence.  Thornton  v.  Grange,  66 
Barb.  507 ;  Tyler  v.  Burrington,  39 
Wis.  376 ;  Neal  v.  Gilmore,  79  Penn. 
St.  421.  And  as  to  inferring  a  claim 
for  a  young  child's  support  against 
the  child's  own  parent,  see  Carroll 
V.  McCoy,  40  Iowa,  38  ;  Thorp  v.  Bate- 
man,  37  Mich.  68.  As  to  strangers, 
indeed,  old  enough  to  perform  val- 
uable service  beyond  the  worth  of 
support,  the  presumption  is  rather  that 


25 


3S5 


§  275  THE   DOMESTIC   RELATIONS.  [PART   III. 

or  some  one  standing  in  place  of  a  parent,  are  not  iinfre- 
quently  presented  against  the  estate  of  a  parent  after  de- 
cease. Thus,  where  an  adult  child  resides  with  and  performs 
valuable  service  for  the  parent,  an  understanding  may  be 
shown  between  them  of  recompense  either  in  money  or  by 
wa}^  of  testamentary  provision  under  the  parent's  will.  In 
meritorious  instances,  and  particularly  where  the  parent  was 
long  sick  and  infirm,  and  the  child  performed  indispensable 
functions,  or  where  by  personal  labor  and  skill  the  child  en- 
hanced the  value  of  the  parental  estate,  a  mutual  intention  to 
this  effect  may  be  readily  inferred  from  the  circumstances  ; 
and  where,  from  some  consistent  cause,  no  such  testamentary 
provision  has  been  made,  compensation  will  be  allowed  out 
of  the  deceased  parent's  estate  upon  the  usual  footing  of  a 
creditor's  claim.^  Presumptions,  however,  as  we  have  seen, 
are  unfavorable,  and  must  be  overcome  ;  and  so,  too,  pre- 
sumptions are  against  the  reimbursement  of  parental  care 
and  trouble  bestowed  upon  offspring.^ 

Where  the  relationship  was  more  distant,  or  the  parties 
concerned  were  not  kindred  at  all  or  united  by  marital  ties, 
the  inference  of  a  promise  to  recompense  the  service  ren- 
dered is  of  course  more  readily  raised,  whether  the  claim  be 
presented  against  the  person  served,  or  against  his  estate, 
upon  his  decease.^ 

§  275.  Suits  between  Child  and  Parents.  —  It  is  intimated  in 
a  recent  case  that,  while  one  occupying  the  quad  parental 
relation  towards  a  minor  stranger  by  blood  may  claim  that 

of  a  contract  relation  for  compensation,  ficient.     Hiatt  v.  Williams,  72  Mo.  214. 

In  general,  the  estate  of  one  who  has  As  to  persons  in  general  performing 

contracted  for  services  to  be  rendered  service  in  expectation  of  a  legacy,  mere 

to  the  family  is  liable  for  the  same  per-  expectation  cannot  create  an  enforce- 

formed    after   his    death.      Toland   v.  able  contract ;    but   a   mutual   under- 

Stevenson,  59  Ind.  485 ;  Frost  v.  Tarr,  standing,  if  shown,  may  afford  the  basis 

53  Ind.  390;  Ilauser  r.  Rain,  74  N.  C.  of  a  valid  claim  against  an  estate.     See 

552 ;    Shakespeare  v.  Markham,  17  N.  Shakespeare    v.    Markhara,   17  N.   Y. 

Y.  Supr.  311.  Supr.  311,  322,  and  cases  cited. 

1  Freeman  v.  Freeman,  65  111.  106  ;  •J  Seitz's  Appeal,  87  Penn.  St.  159. 

Markey  v.  Brewster,  17  N.  Y.  Supr.  16.  See  siiprn,  §  238. 

Specific  performance  has  been  decreed  ^  Briggs  v.  Briggs,  46  Vt.  571 ;  Mor- 

of  a  promised  conveyance  in  considera-  ton  v,  Rainey,  82  111,  215. 
tiou,  even  though  the  will  were  insuf- 

386 


CHAP,  v.]       DUTIES   AND    lilGHTS    OF   CHILDREN.  §  275 

the  child's  services  are  offset  by  the  maintenance,  care,  and 
education  he  has  bestowed  upon  him,  the  failure  to  provide 
properly  while  the  child  rendered  services  raises  a  liability 
for  those  services  which  the  child,  on  attaining  majority,  may 
enforce.^  The  question,  moreover,  is  sometimes  raised  in  these 
days,  whether  a  young  son  or  daughter  occupying  the  filial 
relation  may  not,  on  becoming  of  age,  sue  the  paient  or  quasi 
parent  for  alleged  maltreatment  or  other  injury.^  AVith 
reference  to  a  blood  parent,  however,  all  such  litigation  seems 
abhorrent  to  the  idea  of  family  discipline  which  all  nations, 
rude  or  civilized,  have  so  steadily  inculcated,  and  the  privacy 
and  mutual  confidence  which  should  obtain  in  the  household. 
An  unkind  and  cruel  parent  may  and  should  be  punished  at 
tlie  time  of  the  offence,  if  an  offender  at  all,  forfeiting  cus- 
tody and  suffering  criminal  penalties,  if  need  be  ;  but  for 
the  minor  child  who  continues,  it  may  be  for  long  years,  at 
home  and  unemancipated,  to  bring  a  suit,  when  arrived  at 
majority,  free  from  parental  control  and  under  counter-influ- 
ences, against  his  own  parent,  either  for  services  accruing 
during  infancy  or  to  recover  damages  for  some  stale  injury, 
real  or  imagined,  referable  to  that  period,  appears  quite  con- 
trary to  good  policy.  The  courts  should  discourage  such 
litigation;  and  so  upon  corresponding  grounds  the  parent's 
suit  as  to  cause  of  action  referable  to  the  period  and  relation 
of  tender  childhood.^ 

1  Schrimpf  ;;.  Settegast,  36  Tex.  296.  tion  analogous  at  common  law  to  that 

2  The  writer  is  informed  of  a  nisi  of  coverture.  Now  as  to  coverture,  it 
prius  Maine  case  tried  about  the  close  is  clear  that  from  regard  to  the  peace 
of  1880  (French  v.  Allen),  where  a  of  society  the  common  law  forbade 
daughter,  aged  23,  joined  with  her  bus-  husband  and  wife  to  sue  one  another 
band  in  an  action  for  an  alleged  assault  in  damages  for  breach  of  the  marital 
committed  upon  her  when  she  was  rights;  though  conceding  tliat  the 
eleven  years  old.  The  trial  resulted  in  breach  of  obligation  on  one  side  might 
a  verdict  for  the  defendant,  and  the  release  from  obligation  on  the  other; 
plaintiffs  did  not  proceed  farther ;  con-  that  there  might  be  indirect  redress, 
sequently  the  case  is  not  reported.  separation,  &c.      See   Schoul.  Hus.  & 

3  Clear  precedents  are  wanting  on  Wife,  §  72.  Even  after  a  divorce,  it  is 
these  points;  but  the  policy  of  the  recently  held  that  the  sanctity  of  the 
common  law  appears  to  be  hostile  to  marriage  union  shall  not  be  disturbed 
permitting  such  suits.  Parent  and  child  by  such  litigation  between  the  divorced 
do  not  stand  strictly  as  sui  juris  re-  spouses.  76.  §  561 ;  Abbott  w.  Abbott,  67 
garding  the  world  or  one  another  ;  but  Me.  304.  Of  course  one  spouse  might  be 
infancy  is  usually  taken  to  be  a  rela-  held  criminally  responsible  at  the  time 

38T 


§  276  THE   DOMESTIC    RELATIONS.  [PART   HI. 

Equity,  however,  regards  the  rights  of  parent  and  child, 
as  well  as  of  husband  and  wife,  and  separates  their  property 
interests.^  An  oppressive  contract  relative  to  property  ex- 
torted by  a  parent  from  the  child,  or  by  an  adult  child  from 
the  parent,  may  doubtless  be  relieved  against.^ 


CHAPTER    VI. 

ILLEGITIMATE   CHILDREN. 


§  276.  Illegitimate  Children ;  Their  Peculiar  Footing. —  Illegiti- 
mate children,  or  bastards,  stand  upon  a  different  footing 
from  legitimate  children.  We  have  already  seen  that  bas- 
tards may  be  legitimated  in  many  of  the  United  States,  by 
the  subsequent  marriage  of  their  parents  or  otherwise.  The 
rights  and  disabilities  of  bastards,  as  such,  and  while  con- 
tinuing illegitimate,  require  our  present  attention. 

The  rights  of  a  bastard  are  very  few  at  the  common  law ; 
children  born  out  of  a  legal  marriage  having  been  from  the 
earliest  times  stigmatized  with  shame,  and  made  to  suffer 
through  life  the  reproach  which  were  rightfully  visited  upon 
those  who  brought  them  into  being.  The  dramatist  depicts 
the  bastard  as  a  social  Ishmaelite,  ever  bent  upon  schemes  for 
the  ruin  of  others,  fully  determined  to  prove  a  villain  ;  thus 
fitly  indicating  the  public  estimate  of  such  characters  cen- 
turies ago  in  England.  The  law-writers,  too,  pronounce  the 
bastard  to  be  one  whose  only  rights  are  such  as  he  can  ac- 
quire ;  going  so  far  as  to  demonstrate,  by  cruelly  irresistible 
logic,  that  an  illegitimate  child  cannotpossibly  inherit,  because 
he  is  the  son  of  nobody;  sometimes  called  filiiis  nuUius,  and 

for  a  personal  wrong  against  the  other,  ought,  if  allowable  at  all,  to  be  allowed 

Equity,  with  reference  to  property  and  at  or  about  the  time  of  the  parental 

adverse  interests  therein,  regards  mar-  breach,  only  to  the  infant  suing  by  next 

ried    parties  as    subject,  moreover,  to  friend.  And  the  more  essential  point  is 

litigation  ;  but  that  is  something  quite  to  get  rid  of  the  cruel  custodian,  as  a 

different    so  far  as  public  policy  and  child,  under   fit    circumstances,    may. 

the  interests  of  society  are  concerned.  See,  as  to  actions  by  or  against  infants, 

It  seems  to  us  that  these  analogies  have  post,  Part  V.  c.  6. 

a  close  application  to  the  filial  relation.  ^  Post,  Part  V.  c.  6. 

And  suits  on  an  injured  infant's  behalf,  ^  Bo  we  v.  Bowe,  42  Mich.  195. 

388 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  277 

sometimes  filius  populL^  Coke  seemed  to  concede  a  favor  iu 
admitting  tliut  the  bastard  might  gain  a  surname  by  reputa- 
tion, though  none  by  inheritance.^ 

§  277.  Disability  of  Inheritance.  —  The  most  important  dis- 
ability of  an  illegitimate  child  at  the  common  law,  is  that  he 
has  no  inheritable  blood ;  that  he  is  incapable  of  becoming 
heir,  either  to  his  putative  father  or  to  his  mother,  or  to  any 
one  else ;  that  he  can  have  no  heirs  but  those  of  his  own 
body. 2  This  was  likewise  the  doctrine  of  the  civil  law ;  the 
language  of  the  Institutes  as  to  spurious  offspring,  patrem 
habere  non  intelliguntur^  dealing  rather  more  gently  with  a 
fact  so  extremely  delicate  and  painful.^  At  the  old  canon 
law  a  bastard  was  treated  as  also  disqualified  from  holding 
dignities  in  the  church  ;  but  this  doctrine  became  exploded 
long  ago.  "  And  really,"  adds  Blackstone,  with  warmth,  as 
if  to  atone  for  a  long  and  fallacious  argument  against  legiti- 
mation by  a  subsequent  marriage,  "  any  other  distinction  but 
that  of  not  inheriting,  which  civil  policy  renders  necessary, 
would,  with  regard  to  the  innocent  offspring  of  his  parents' 
crimes,  be  odious,  unjust,  and  cruel  to  the  last  degree."  ^ 
And  so  might  the  commentator  of  the  commentaries  stig- 
matize the  efforts  of  those  who  have  nothing  better  to  urge 
against  human  rights,  than  the  importance  of  preserving  the 
symmetry  of  the  law  unimpaired. 

The  civil  law,  while  offering  in  certain  cases  a  hope  of 
legitimation,  made  a  distinction  between  spurious  offspring 
born  of  promiscuous  intercourse,  and  such  as  were  conceived 
or  born  during  the  marriage  of  one  of  the  natural  parents  ; 
presuming  that  while  the  former  might  be  rendered  legiti- 
mate, the  latter  never  could  become  so.^  And  the  rule  was 
more  severe  with  the  one  class  than  the  other.  This  prin- 
ciple is  to  be  traced  in  the  provisions  of  the  Louisiana  Code  ; 
children  whose  father  is  unknown  and  adulterous  or  incestu- 

1  Fort,  de  LI.  ch.  40 ;  1  Bl.  Com.  458.  3  2  Kent  Com.  212 ;  1  Bl.  Com.  459. 

2  Co.    Litt.    3.       The    very    term  *  Inst.  1,  10,  12 ;  2  Kent  Com.  «6. 
"  bastard,"  said  to  be  derived  from  the  *  1  Bl.  C!om.  459. 

Saxon   words  "base  start,"  expresses  **  1    Dig.  5,   28;    Fraser   Parent   & 

contempt.     See  Fraser  Parent  &  Child,     Child,  119. 

119. 

389 


§  277  THE   DOMESTIC   RELATIONS.  [PART   III. 

ous  children  having  no  right  of  inheritance,  while  other 
natural  or  illegitimate  children  succeed  to  the  estate  of  their 
mother  in  default  of  lawful  children  or  descendants,  and 
under  certain  conditions  to  the  estate  of  the  father  who  has 
acknowledged  them.^ 

The  well-settled  American  rule,  however,  differs  consider- 
abl}^  from  that  of  both  civil  and  common  law.  We  have 
already  noticed  that  legitimation  by  subsequent  marriage  is 
a  principle  admitted  very  generally  in  the  legislation  of  the 
different  States.  So,  too,  are  there  various  statutes  which 
permit  even  bastard  children  to  inherit  from  the  father  under 
certain  restrictions  ;  while  the  generally  recognized  doctrine 
is  partus  sequitur  ventrem^  and  that  the  illegitimate  child  and 
his  mother  shall  mutually  inherit  from  each  other.  Thus,  by 
recent  statutes  in  Maine,  the  mother  of  an  illegitimate  child 
can  inherit.  In  Massachusetts,  the  illegitimate  is  an  heir  to 
his  mother.  In  New  York,  in  default  of  lawful  issue  of  the 
mother,  her  illegitimate  children  may  inherit  her  real  and  per- 
sonal estate.  In  Pennsylvania,  bastards  shall  bear  the  name 
of  the  motlier,  and  she  and  they  shall  inherit  from  each  other. 
Certain  kindred  of  the  bastard's  mother,  in  Georgia  and  Ala- 
bama, had  rights  of  distribution  under  still  earlier  statutes. 
In  Tennessee  and  some  other  States,  a  liberal  rule  is  applied 
with  respect  to  mother  and  brothers  and  sisters.^  In  Mary- 
land, illegitimates  may  inherit  from  the  mother  and  from 
illegitimate  brothers  and  sisters ;  though  illegitimates  cannot 
take  from  the  legitimate,  neither  legitimates  from  the  illegiti- 
mate.^ And,  about  fifty  years  ago,  Kent  instanced  twelve 
States  where  bastards  could  inherit  from,  and  transmit  to, 
their  mothers,  real  and  personal  estate,  under  some  modifi- 
cations ;  while  in  New  York,  the  mother  and  her  kindred 
could  inherit  from  her  bastard  offspring.*     There  is  scarcely 

1  See  2  Kent  Com.  213.  «  See  2  Kent  Com.  11th  ed.  212,  213, 

2  Lewis  V.  Eutsler,  4  Ohio  St.  354;  and  notes.  And  as  to  inheritance  from 
Opdj-ke's  Appeal,  49  Penn.  St.  373 ;  the  father,  see  snpra,  229.  These  stat- 
Havvkins  v.  Jones,  19  Ohio  St.  22;  utes  of  inheritance  are  not  generally 
Riley  v.  Byrd,  3  Head,  20.  to  be  extended  so  as  to  apply  to  grand- 

s  Miller  v.  Stewart,  8  Gill,  128;  children  and  grandparents,  in  a  case  of 
Earle  v.  Dawes.  3  Md.  Ch.  230.  illegitimacy.     See  Steckel's  Appeal,  64 

390 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  278 

a  State  in  the  Union  which  has  not  departed  widely  from  the 
policy  of  the  English  common  law ;  and  statutes,  which  hap- 
pily have  required  as  yet  very  little  judicial  interpretation, 
perpetuate  the  record  of  our  liberal  and  generous  public 
policy  towards  a  class  of  beings  who  were  once  compelled 
to  bear  the  iniquities  of  the  parent. 

§  278.  Mother  preferred  to  the  Putative  Father;  Custody. — 
The  doctrine  that  a  natural  tie  connects  the  illegitimate  child 
peculiarly  with  his  mother  was  recognized  at  the  civil  law ; 
for,  under  the  ordinance  of  Justinian,  the  bastard  might  to  a 
certain  extent  inherit  from  his  mother.^  So  at  the  common 
law  have  the  obligations  of  consanguinity  between  the  mother 
and  her  illegitimate  offspring  been  applied  in  several  in- 
stances. But  as  concerns  any  exclusive  privileges  on  behalf 
of  t]ie  mother,  this  does  not  seem  very  clear ;  for  in  a  case 
which  was  decided  in  1786,  the  rights  of  the  putative  father 
seemed  to  be  placed  on  much  the  same  footing  as  in  other 
cases  ;  and  his  consent  was  deemed  prima  facie  essential 
under  the  marriage  act  of  26  Geo.  I.  ;  so  was  his  right 
apparently  admitted  to  take  his  illegitimate  child  out  of  the 
parish  .2 

There  are,  to  be  sure,  occasional  dicta  to  the  effect  that  the 
putative  father  has  no  common-law  right  to  the  custody  of 
the  child  as  against  the  mother,  and  that  certainly  within  the 
age  of  nurture,  that  is,  under  the  age  of  seven,  the  mother 
has  the  exclusive  right  to  the  custody.  The  more  correct 
statement,  however,  is  that  pauper  children,  whether  legiti- 
mate or  not,  are  under  the  English  system  made  inseparable 

Penn.  St.  493 ;  Berry  v.  Owens,  5  Bush,  A  cliilil  begotten  of  a  mother  who 

452.      For   construction   of    the    word  had  married  in  good  faitii,  not  knowing 

"  illegitimate  "  see  Miller  v.  Miller,  25  tliat  a  legal  impediment  to  tlie  marriage 

N.  Y.  Supr.  507.    An  illegitimate  child  existed,   is   treated   with   favor.     Har- 

can  administer  on  his  father's  estate  as  rington  v.  Barfield,  30  La.  Ann.  297. 

against  the  father's  brother.     Re  Pico,  By    local    statutes    the   legitimacy   of 

52  Cal.  84.     In  general,  an  illegitimate  such  offspring  is  preserved  in  annulling 

child,  where  there  was  no  subsequent  sucli  marriages,  as  we  have  seen,  su- 

marriage  of  the  parents,  nor  adoption,  pr«.  Part  II.  c.  1. 

cannot  inherit  from  the  putative  father.  i  Code,  lib.  6,  57.     See  2  Kent  Com. 

As  to  such  acts  of  inlieritance,  a  child  214. 

is  rendered  legitimate  only  suh  modo.  -  King  v.  Hodnett,  1  T.  R.  96,  and 

Neil's  Appeal,  92  Penn.  St.  193.  cases  cited  passim ;  Macphers.  Inf.  67. 

391 


§  278  THE  DOMESTIC   RELATIONS.  [PART  IH. 

from  the  mother  within  the  years  of  nurture ;  and  that  at 
common  law  neither  the  putative  father  nor  the  mother  of  an 
illegitimate  child  had  any  exclusive  right  of  guardianship.^ 
The  common-law  cases  cited  in  the  mother's  favor  are  only 
to  the  effect  that  where  a  bastard  child  within  the  period  of 
nurture  is  in  the  peaceable  possession  of  the  mother,  and  the 
putative  father  gets  possession  of  the  child  by  force  or  fraud, 
the  court  will  interfere  to  put  matters  in  the  same  situation 
as  before.^  Both  Lord  Kenyon  and  Lord  Ellenborough  — 
the  latter  as  late  as  1806  —  expressed  doubts  as  to  whether 
the  court  would  take  away  the  custody  of  an  illegitimate 
child  from  the  father  who  had  fairly  obtained  possession,  and 
award  it  to  the  mother.^ 

Nor  do  the  later  English  cases  aid  greatly  in  clearing  up 
the  doubt  on  this  point.  Lord  Mansfield  regarded  the  law 
as  doubtful  in  his  day,  while  himself  inclining  strongly  to 
the  opinion  that  the  putative  father  had  no  right  to  his 
child's  custody.*  In  18-41,  a  case  came  before  the  Court  of 
Common  Pleas,  on  a  writ  of  habeas  corpus^  applied  for  by  the 
mother,  the  child  being  then  between  eleven  and  twelve  years 
of  age,  and  in  the  custody  of  her  putative  father.  But  the 
child  was  deemed  old  enough  to  exercise  her  own  discretion 
as  to  where  she  would  go  ;  and  as  she  appeared  unwilling  to 
go  with  her  mother,  the  court  would  not  permit  the  mother 
to  take  her  by  force.^ 

The  chancery  courts  have  in  several  instances  favored  the 
father  of  an  illegitimate  child  to  the  exclusion  of  his  mother. 
Thus,  while  the  practice  is  not  to  appoint  the  putative  father 
guardian  of  his  illegitimate  child  having  no  property,  unless 
he  makes  a  settlement  upon  him  ;  yet,  if  he  does  so,  his  ap- 
pointment is  favorably  regarded.     No  special  regard  seems  to 


1  Macphers.  Inf.  67.  498.     And  see  Pope  v.  Sale,  7  Bing. 

2  Rex  V.  Soper,  5  T.  R.  278;  Rex  v.  477. 

Hopkins,  7  East,  579;  Rex  v.  Moseley,  &  In  re  Lloyd,  3  Man.  &  Gr.  547. 

5  East,  223.  Comparing  all  the  dicta  in  tlie  forego- 

3  Per  Lord  Kenyon,  Rex  v.  Moseley,  ing  cases  carefully  together,  it  will  be 
supra  (1708);  per  Lord  Ellenborough,  seen  that  they  are  not  decidedly  against 
Rex  V.  Hopkins,  supra.  the  putative  father's  riglit  of  custody. 

*  Straugeways  v.  Robinson,  4  Taunt. 

392 


CHAP.  VI.]  ILLEGITIMATE  CHILDREN.  §  278 

have  been  paid  to  the  mother  of  such  children.^  And  while 
the  committee  of  a  lunatic  might  petition  for  an  allowance  for 
his  bastard  offspring,  their  mother  might  not.^ 

But  the  language  of  the  new  poor  laws  of  England  (after 
many  changes)  is  favorable  to  the  mother's  special  claims  ; 
being  to  the  effect  that  the  mother  is  in  any  case  bound  to 
maintain  her  bastard  child  under  sixteen,  unless  such  child 
meantime  marries  or  acquires  a  settlement  of  its  own ;  and 
that  such  cliild  shall  follow  the  settlement  of  the  mother.^ 
And  if,  being  of  ability,  she  neglects  to  support  such  child, 
whereby  it  becomes  chargeable  to  the  parish,  she  may  be 
punished  under  the  vagrant  acts.*  Another  section  of  the  act 
of  4  &  5  Will.  IV.,  which  provides  that  the  husband  shall 
support  stepchildren  of  his  wife,  includes  in  its  terms  illegiti- 
mate as  well  as  legitimate  children,  and  so  far  favors  a  hus- 
band's right  of  custody  ;  but  that  provision  covers  only  a  very 
limited  ground.^ 

The  rights  of  the  parents  of  bastards  are  regulated  to  a 
great  extent  in  the  United  States  by  statute  ;  and  our  policy 
is  in  general  more  favorable  than  that  of  England,  as  to  the 
mother's  rights.  An  illegitimate  child  follows  the  settlement 
of  his  mother  in  New  York  and  some  other  States.^  But  in 
Connecticut  the  rule  is  that  a  bastard  is  settled  where  born, 
like  any  other  child,  and  that  his  settlement  follows  that  of 
the  putative  father.''  In  New  York  again,  ever  zealous  in 
guarding  the  interests  of  women  and  children,  it  is  broadly 
ruled  that,  as  against  the  mother  of  a  bastard  child,  the  puta- 
tive father  has  no  legal  right  of  custody  ;  that  the  mother,  as 
its  natural  guardian,  is  bound  to  maintain  it  ;  and  that  she  is 
entitled  to  control  it.^  Stratagem  and  force  on  the  part  of 
the  putative  father  always  furnish  good  grounds  for  restora- 

i  Macphers.  Inf.  110,  rie  ?;.  Johnson,  17  Johns.  41 ;  Petersham 

2  Re  Jones,  5  Russ.  154,  v.  Dana,  12  Mass.  4'iO;  Lower  Augusta 

3  4  &  5  Will.  IV.  c.  76,  §  71.  v.  Salinsgrove,  04  Pcnn.  St.  166. 

4  7  &  8  Vict.  c.  101 ;  8  &  9  Vict.  c.  7  Bethleni  v.  Roxbury,;JO  Conn.  298. 
10.  And  see  Smith  v  Slate,  i  lloust.  C.  C. 

5  4  &.')  Will.  IV,  c.  76,  §51.   See  com-  107. 

ment  of  Maule,  J.,  In  re  Lloyd,  3  Man.  ^  People   v.   Kling,    6    Barb.    .366  ; 

&  Gr.  647.  Robalina  v.  Armstrong,  15  Barb.  247, 

6  See  2  Kent  Com.  214 ;  Canajoha- 

393 


§  279  THE    DOMESTIC    -RELATIONS.  [PART    III. 

tion  of  the  cliild  to  the  mother.^  And  the  Roman,  Spanish, 
and  French  laws  all  deny  the  power  of  the  putative  father 
over  the  illegihmate  child;  this  principle  being  likewise 
transferred  to  Louisiana  and  other  States,  once  under  the 
civil  law ;  though,  in  Texas  at  least,  the  putative  father  is 
allowed  the  guardianship  of  such  child  after  the  mother's 
death.2  In  some  States,  we  may  add,  the  superior  rights  of 
the  mother  in  binding  out  her  illegitimate  child  are  favorably 
regarded.^ 

§  279.  Maintenance  of  Illegitimate  Children. — The  COmmon-law 
rule,  in  absence  of  statutes,  is  that  the  putative  father  is  under 
no  legal  liability  to  support  his  illegitimate  offspring.  But 
upon  the  strength  of  the  natural  or  moral  obligation  arising 
out  of  the  relation  of  the  putative  father  to  his  child,  an  action 
at  common  law  lies  for  its  maintenance  and  support  upon  an 
express  promise  ;  and  where  one  admits  himself  to  be  the 
father  and  adopts  the  child,  while  such  adoption  continues,  a 
promise  may  be  implied  in  favor  of  the  party  providing  for  it. 
He  may  renounce  the  adoption,  and  terminate  this  implied 
assumpsit,  in  which  case  there  is  no  remedy  to  be  pursued, 
unless  under  a  statute.  The  father  can  only  be  charged  then 
upon  his  contract.*  But  upon  his  promise  to  third  persons, 
he  may  be  held  liable  ;  and  a  promise  by  the  putative  father 
to  pay  the  stepfather  for  the  child's  support,  past  and  future, 
if  he  will  continue  to  support  it,  is  binding.^ 

1  Commonwealtli  v.  Fee,  6  S.  &  R.  doned  and  apprenticed  out  by  an  asy- 

255.  lum,  see  Copeland  v.  State,  60  Ind.  394. 

'-  Acosta  u.  Robin,  19  Martin,  387;  *  Hesketh  ;;.  Gowing,  5  Esp.  131; 

Barela  v.  Roberts,  34  Tex.  554.  Nichols  v.  Allen,  3  Car.  &  P.  36 ;  Furril- 

AU'red    v.    McKay,   36   Ga.    440;  lio  i\   Crowther,  7  Dovvl.  &  Ry.  612; 

McGunigal  v.  Mong,  5  Penn.  St.  269 ;  Cameron  v.   Baker,  1    ~:ar.  &  P.  258 ; 

Pratt  V  Nitz,  48  Iowa,  33.     Butaputa-  Moncrief  v.  Ely,  19  Wend.  405.  Claims 

live  father  who  has  paid  a  judgment  for  maintenance  upon  the  estate  of  a 

against  himself  for  breach  of  a  bond  to  second  putative  father  are  not  favored, 

the  town  for  the  child's  support, and  has  where  no  express  and  binding  contract 

received  the  child  with  authority  from  to  support  can  be  established,  nor  are 

the  selectmen,  iias  a  right  to  the  child's  verbal    declarations    readily    available 

control  and  custody.     Adams  r.  Adams,  to  show  such  a  contract.     Duncan   v. 

60  Vt.  158.     As  to  the  guardian's  right  Pope,  47  Ga.  445  ;  Nine  v.  Starr,  8  Oreg. 

of   custody  to  an  illegitimate   orphan  49;  Dalton  r.  Halpin,  27  La.  Ann.  382. 

child,  see  Johns  l\  Emmert,  62  Ind.  533.  5  Wiggins  v.  Keizer,  6  Ind.  252. 
And  where  the  child   has  been  abaa- 

394 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  279 

But  the  statutes  whicli  relate  to  the  maintenance  of  bas- 
tard children,  supply  the  want  of  adequate  common-law 
remedies  ;  the  main  element  in  such  legislation  being  public 
indemnity  against  the  support  of  such  persons.  Under  the 
old  poor-laws  of  England,  the  mother  had  a  compulsory 
remedy  against  the  putative  father;  but  this  was  taken  away 
by  the  act  of  4  &  5  Will.  IV.  c.  76.  By  the  statute  of  7  & 
8  Vict.  c.  101,  however,  the  mother  is  afforded  relief  once 
more,  and  the  father  may  be  summoned  before  the  petty 
sessions  and  ordered  to  pay  a  weekly  sum  for  the  child's 
maintenance,  and  the  costs  of  obtaining  the  order ;  mainte- 
nance to  last  until  the  child  is  thirteen  years  of  age.  The 
money  is  to  be  paid  to  the  mother,  and  may  be  recovered  by 
distress  and  imprisonment.^  The  provisions  of  law  in  force 
in  most  of  the  United  States  are  borrowed  from  the  older 
English  statutes,  and  our  courts  are  very  generally  invested 
with  plenary  jurisdiction  over  such  matters ;  and  at  the 
instance  of  the  mother  the  father  may  be  coerced  by  arrest 
and  imprisonment,  if  need  be,  into  giving  bonds  and  furnish- 
ing maintenance  for  his  illegitimate  child;  thus  relieving  the 
mother  to  some  extent  of  the  burden  to  which  his  criminal 
misconduct  has  chiefly  contributed,  and  indemnifying  the 
public  against  the  support  of  the  penniless  and  unfortu- 
nate.2 

Past  seduction  has  been  held  sufficient  to  support  a  deed. 
There  is  an  old  English  case,  where  equity  compelled  the 
specific  performance  of  a  deed-poll,  made  by  a  man  who  had 
seduced  a  woman  and  had  a  child  by  her ;   the  writing  prom- 

1  Andsee2&3Vict.c.  85;8&9  Vict.  Wilson,  30  Ind.  240  ;  Barber  v.  State, 
c.  101.  The  order  may  be  obtained  by  a  24  Md.  383  ;  Wlieelwright  i-.  Greer,  10 
married  woman,  mother  of  tlie  bastard,  Allen,  389.  See  Bisliop  and  other  vvrit- 
Regina  v.  CoUingwood,  12  Q.  B.  (381.  ers  on  statutory  crimes.  In  some 
And  see  Foliit  v.  Koetzow,  24  Jur.  651.  States  certain  persons  are  authorized  to 
In  case  of  death  or  incapacity  of  the  make  complaint  against  the  father  for 
mother,  so  that  the  child  becomes  maintenance  of  the  bastard,  where  the 
chargeable  to  tlie  parish,  the  order  may  mother  refuses  or  neglects  to  do  so.  lb. 
be  enforced  by  the  guardians  or  over-  The  main  purpose  of  these  bastard 
seers  of  the  parish.  acts  is  to  indemnify  the  public  against 

2  2  Kent  Com.  215,  and  cases  cited  ;  support  of  the  child,  and  they  appear 
State  V.  Beatty,  06  N.  C.  648  ;  Musser  to  be  in  the  nature  of  civil  proceed- 
V.  Stewart,  21  Ohio  St.  353 ;  Marlett  v.  ings. 

395 


§  281  THE   DOMESTIC   DELATIONS.  [PAKT   III. 

ising  to  pay  .£2,000  after  his  death  for  the  purchase  of  an 
annuit}'  for  the  mother  and  her  child  for  their  Hves.  Both 
the  man  and  the  child  had  died  before  the  suit  was  brought.^ 
In  Peinisylvania,  the  same  principle  is  pushed  even  farther  ; 
for  it  is  ruled  tliat  seduction  of  a  female  and  begetting  a  bas- 
tard is  sufficient  consideration  to  support  a  man's  promise  to 
give  bonds  for  a  sum  of  money .^  But  there  must  be  noth- 
ing oppressive  or  unfair  in  such  transactions,  and  if  the 
promise  be  solely  in  consideration  of  stopping  a  criminal 
prosecution,  it  is  void.^  Nor  ought  agreements  as  to  the 
wages  of  sin  to  be  favored.* 

Whatever  may  be  the  mother's  legal  responsibility  for  the 
maintenance  of  her  bastard  child  while  she  lives,  it  appears 
that  an  action  cannot  be  maintained  against  the  administra- 
tor of  her  estate  for  the  child's  maintenance  subsequently  to 
her  death.^ 

§  280.  Persons  in  Loco  Parentis ;  Distant  Relatives,  &c.  — 
A  person  standing  in  loco  parentis  may  sue  7:>er  quod  ser- 
vitium  for  the  abduction  of  his  daughter's  illegitimate 
child.^  But  a  parent  is  not  bound  to  support  the  illegit- 
imate offspring  of  his  children."  Relatives  more  distant 
than  parents  do  not,  on  the  whole,  seem  to  have  much 
consideration  in  matters  of  this  sort ;  and  it  is  even  pos- 
sible that  the  assumption  of  a  family  name  by  an  illegiti- 
mate member  is  a  grievance  for  which  the  offended  relatives 
have  no  redress.^ 

§  281.    Bequests  to  Illegitimate  Children.  —  Bequests  to  ille- 

1  Marcliioness  of  Annandale  v.  Har-  3  /j_  guj  ggg  Merritt  v.  Fleming, 
ris,  2  P.  Wms.  433.     And  sec   Turner    42  Ala.  234. 

V.  Vaughan,  2  Wils.  339.  «  g^e  Binnington  v.  Wallis,  4  B.  & 

2  Shenk  i:  Mingle,  13  S.  &  R.  29.     Aid.  G50. 

And  see  Pliiilippi  ('.  Commonwealth,  18  5  Ruttinger   i;.  Temple,   4  B.  &   S. 

Penn.  St.  116;  Knye  v.  Moore,  1  Sim.  401.     And  see  supra,  §  278;  Druet  v. 

&  Stu.  161.     The  undertaking  of  a  pu-  Druet,  20  La.  Ann.  323. 

tative  father  to  pay  the  mother  money  *  Moritz  v.  Garnhart,  7  Watts,  302. 

for  the  support  of  the  cliild  is  not  ille-  7  Hillsborough  v.  Deering,  4  N.  H. 

gal.     Hook  V.  Pratt,  78  N.  Y.  371.     A  86. 

negotiable  bill  might  tiius  be  given.  lb.  *  Du  Boulay  v.  Du  Boulay,  L.  R.  2 

A  mother  may  sue  for  injuries  done  P.  C.  430.     See  Vane  v.  Vane,  L.  R.  8 

lier,  notwitlistandiiig   a   bastardy  act.  Ch.  383. 
Sutfin  V.  People,  43  Mich.  37. 

396 


CHAP.  VI.]  ILLEGITIMATIi   CHILDREN.  §  281 

gitimate  children,  since  they  are  not  considered  as  relatives, 
are  not  favored  in  English  law.  There  have  been,  it  is  true, 
certain  dicta  to  the  contrary ;  but  Lord  Eldon  was  of  the 
opinion  that  there  must  be  something  to  show  that  the  testa- 
tor put  himself  in  loco  parentis  ;  and  it  has  since  been  decided 
that  an  illegitimate  child  is  not  merely,  as  such,  within  the 
rule,  for  he  is  "  a  stranger  to  the  testator."  ^  On  the  ground 
of  uncertainty  in  the  person,  a  bequest  to  an  unborn  legiti- 
mate child  was  long  considered  objectionable ;  but  Lord 
Eldon  and  others  maintained  that  legacies  given  to  the 
unborn  illegitimate  child  of  a  particular  woman  then  preg- 
nant would  be  good,  because  the  uncertainty  of  description 
could  here  be  obviated.^  But  it  is  now  well  settled  in  Eng- 
land that  a  devise  or  bequest  in  favor  of  other  future  ille- 
gitimate children  is  void.^ 

Illegitimate  children  may  undoubtedly  take  by  purchase  as 
persons  designated,  if  sufficiently  described.*  The  question 
in  cases  of  this  sort  is  really  one  of  intention.  Prima  facie, 
the  term  ''  children  "  in  a  will,  however,  is  intended  to  mean 
legitimate  children  ;  and  if  there  are  legitimate  children,  or 
if  it  be  possible  that  there  should  be  legitimate  children  of 
the  person  named,  the  English  rule  is  that  no  illegitimate 
child  can  take  under  the  description  of  children.^  Yet,  if 
they  have  acquired  the  reputation  of  being  the  children  of  a 
particular  person,  they  are  capable  of  taking  under  the 
description  of  "  children,"  or  "  daughters."  ^     Li  Medworth  v. 


1  Lowndes  v.  Lowndes,  15  Ves.  304 ;  ^  Gill  v.  Shelley,  2  Russ.  &  My. 
Perry  v.  AVIiitehcad,  (5  Ves.  547  ;  contra,  336  ;  In  re  Wells's  Estate,  L.  R.  6  Eq. 
per  Lord  Alviinley,  Cricket  v.  Dolby,  599;  Paul  v.  Children,  L.  R.  12  Eq.  16; 
3  Ves.  30 ;  Macpliers.  Inf.  238.  Dorin  v.  Dorin,  L.  R.  7  H.  L.  568. 

2  Macphers.  Inf.  570,  and  cases  6  Peachey  Mar.  Settl.  885,  n.,  and 
cited ;  Gordon  v.  Gordon,  1  Mer.  141 ;  cases  cited  ;  Evans  v.  Davies,  7  Hare, 
Dawson  v.  Dawson,  6  Madd.  292.  501;  Owen  v.  Bryant,  2  De  G.,  M.  & 

8  Beachcroft  v.  Beachcroft,  1  Madd.  G.  697  ;   Hartley  v.  Trihber,   16  Beav. 

430;  Knye  v.  Moore,  1  Sim.  &  Stu.  61  ;  510;Lei,ch  v.  Byron,  1  Sm.  &  Gif.  486; 

Wilkinson  v.  Wilkinson,  1  You.  &  Coll.  Tugwell  v.  Scott,  24  Beav.  141  ;  Worts 

657  ;  Medworth  v.  Pope,  27  Beav.  71.  v.  Cubitt,  19  Beav.  421.     And  see  Wil- 

*  Blodwell  V.   Pldwards,    Cro.   Eliz.  liamson  v.  Codrington,  1  Ves.  Sen.  511. 

509 ;  Co.  Lift.  36 ;  Peachey  Mar.  Settl.  Where  legitimate   cluldrcn    alone   an- 

885,  n. ;  Clifion  r.  Goodhnn,  L.  R.  6  Eq.  swer  to  the  description  intended,  or  are 

278;  Crook  v.  Hill,  L.  R.  6  Ch.  311.  sufficiently  designated,  they  will  take 

397 


§  281  THE   DOMESTIC   RELATIONS.  [PART  III. 

Pope^  the  rule  was  concisely  stated  to  be,  that  an  illegit- 
imate child  in  esse  or  en  ventre  sa  mere  may,  if  properly 
described,  take  the  benefit  of  a  devise  or  bequest,  and  the 
court  will  not  inquire  as  to  his  parentage  or  origin  ;  but  that 
in  respect  of  future  illegitimate  children,  the  law  will  not  let 
them  take  under  any  description  whatever.  "  The  reason 
why  the  English  law  so  holds  is,  that  it  considers  such  a 
provision  for  future  illegitimate  children  as  contra  honos 
mores.^^  ^ 

In  this  country,  the  tendency  seems  to  be  so  far  favorable 
to  illegitimate  children  as  to  regard  wills  made  in  their  favor 
with  the  same,  or  nearl}^  the  same,  consideration  as  all  others. 
And  our  courts  regard  bastards  as  having  strong  claims  to 
equitable  protection,  notwithstanding  the  criminal  indulgence 
of  their  parents.  In  several  important  cases,  specific  per- 
formance of  voluntary  settlements  made  by  the  father  in 
their  favor  have  been  decreed.^  And  a  devise,  in  specific 
terms,  to  an  unborn  natural  child  of  a  woman  then  pregnant, 
is  sustained  here  as  in  England.^  But  whether  our  tribunals 
would  sanction  a  bequest  to  other  unborn  illegitimate  chil- 
dren may  admit  of  doubt ;  provided  such  child  were  never 
legitimated  by  subsequent  marriage.  For,  after  all,  there 
must  be  some  discrimination  made  against  criminal  inter- 
course. 

under  tlie  will.     Hill  v.  Crook,  L.  R.  6  see  Clarke  v.  "Wright,  6   Hurl.  &  Nor. 

H.  L.  265.     But  the  ultimate  right  of  849.     As  to  legacies  and  devises,  see 

the  crown  in  case  of  illegitimacy  can-  Beachcroft  v.  Beachcroft,  1  ]\Iadd.  430, 

not  be  evaded  by  the  terms  of  a  trust,  and  cases  cited;  Durrant  v.  Friend,  11 

7^/?  Wilcock's  Settlement,  L.  R.  1  Ch.  D.  E.   L.  &   Eq.   2;  Owen  v.  Bryant,  13 

229.  E.  L.  &  Eq.  217;   4   Kent  Com.  414; 

1  Per  M.  R.,  in  Medworth  v.  Pope,  Bagley  v.  MoUard,  1  Russ.  &  My.  581. 
27  Beav.  71.     A  chWd  en  ventre  sa  mere  2  Gardner  v.   Heyer,   2  Paige,   11; 

at  date   of  the  will,  though  not  born  Bunn  v.  Winthrop,  1  Johns.    Ch.  338; 

until  after  testator's   death,   may  take  Harten   v.   Gibson,   4   Desaus.    139;  2 

a  bequest.     Crook    ;.'.    Hill,   3    Ch.  D.  Kent  Com.  216  ;   Shearman   v.  Angel, 

773.  And  see  L.  R.  6  H.  L.  265.  Further  Bail.  Eq.  351 ;  Collins  v.  Hoxie,  9  Paige, 

important   illustrations  of   the   equity  88. 

doctrine   may   be   seen   in  the   recent         3  Knye  v.  Moore,  5  Harr.  &  Johns, 

cases  of  Lambe  r.  Eames,  L.  R.  6  Ch.  10.     As  to  legacies  and  devises  to  ille- 

597  ;  Holt  v.  Sindrey,  L.  R.  7  Eq.  170;  gitimate  children  under  American  laws, 

Savage  v.  Robertson,  L.  R.  7  Eq.  176.  see  4   Kent  Com.  413,  414,  and  cases 

And  as  to  the  application  of  27  Eliz.  c.  cited  ;  Hughes  v.  Knowlton,   37  Conn. 

4,  to  marriage  settlements  for  bastards,  429. 

398 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  282 

§  282.  Guardianship  of  an  Illegitimate  Child.  —  Testamentary 
guardianship,  of  which  we  are  to  speak  in  another  connec- 
tion, is  of  such  a  nature  that  a  father  cannot  by  his  will 
appoint  a  guardian  for  his  illegitimate  children.^ 

1  Sleeman  v.  Wilson,  L.  R.  13  Eq.  for  instance  in  case  such  a  child  has 
3G.  Guardians  are  of  course  appointed  a  legacy.  Johns  v.  Emmett,  62  Ind. 
on  occasion  for  illegitimate  minors,  as    533. 

899 


PART  lY. 

GUARDIAN  AND   WARD. 


CHAPTER   I. 

OF   GUARDIANS    IN   GENERAL  ;    THE   SEVERAL   KINDS. 

§  283.  Guardianship  Defined ;  Applied  to  Person  and  Estate. 
—  The  guardian  is  a  person  entrusted  by  law  with  the  inter- 
ests of  another,  whose  youth,  inexperience,  mental  Aveakness, 
and  feebleness  of  will  disqualify  him  from  acting  for  himself 
in  the  ordinary  affairs  of  life,  and  who  is  hence  known  as  the 
ward. 

Guardianship  usually  applies  to  minor  children ;  and  in 
this  sense  the  guardian  may  be  either  their  natural  protector, 
whose  authority  is  founded  upon  universal  law,  or  some  per- 
son duly  chosen  to  act  on  their  behalf.  Thus,  the  father 
(and  sometimes  the  mother)  exercises  the  right  of  custody 
and  nurture  as  the  child's  natural  guardian  ;  while,  if  the 
parents  are  dead,  some  one  must  be  selected  to  supply  their 
place.  And  since  the  parental  control  does  not  extend  to  the 
estate  of  a  minor,  the  appointment  of  a  guardian  may  be  both 
necessary  and  proper,  when  property  becomes  vested  in  a 
child  under  age.  Guardianship  applies  also  at  the  j)resent 
day  to  idiots,  lunatics,  spendthrifts,  and  the  like  ;  and  the 
guardian  of  such  person  derives  his  authority  from  statute 
law  antl  a  special  appointment.  This  guardian  is  sometimes 
designated  as  the  committee. 

The  law  of  guardianship  is  most  naturally  divided  into 

guardianship  of  the  person,  and  guardianship  of  the  estate. 

Guardianship  of  the  person  is  a  relation  essentially  the  same 

as  that  of  parent  and  child,  though  not  without  some  impor- 

400 


CHAP.  I.]  GUARDIANS    IN   GENERAL.  §  284 

tant  differences,  as  we  shall  see  hereafter.  Hence  the  guar- 
dian has  been  called  "a  temporary  parent."  ^  Guardianship 
of  the  estate  bears  a  closer  resemblance  to  trusteeship  ;  guar- 
dians and  trustees  being  alike  bound  to  manage  estates  with 
fidelity  and  care,  under  the  supervision  and  direction  of  the 
chancery  courts.  The  same  person  is  often  guardian  of  both 
the  person  and  estate  of  the  ward  ;  but  not  necessarily,  for 
these  may  be  kept  distinct.  So,  too,  there  may  be  joint 
guardians,  as  in  other  trusts. 

§  284.  Classification  of  Minors  in  England ;  Obsolete  Species. 
—  The  law  of  guardianship,  in  England,  is  one  of  irregular 
growth.  Guardians,  until  chancery  jurisprudence  became  fully 
developed,  were  recognized  only  for  certain  limited  purposes. 
Their  powers  were  restricted,  and  new  classes  were  created 
from  time  to  time,  as  the  exigency  arose.  One  species  of 
guardianship  would  fall  into  disuse  and  another  spring  up  in 
its  place.  Hence  it  is  found  difficult  to  attempt  a  classifica- 
tion, or  reduce  the  general  authority  of  guardians  to  a  defi- 
nite system.  A  recent  English  text- writer  enumerates  no 
less  than  eleven  different  kinds  of  guardians,  many  of  which 
are  obsolete,  and  others  of  merely  local  application.^  Among 
them  may  be  mentioned  guardianship  in  chivalrjj,  an  incident 
of  the  feudal  tenure,  more  in  the  nature  of  a  hardship  than 
a  privilege,  so  far  as  the  ward  was  concerned,  which  was 
finally  abolished  in  the  time  of  Charles  II. ;  guardianship  hy 
special  custom^  which  was  confined  to  London  and  certain 
other  localities,  and  appears  to  exist  no  longer ;  guardianship 
by  appointment  of  the  spiritual  courts^  traces  of  which  still 
exist  in  the  appointment  of  administrators  durante  minore 
cetate ;  guardianship  hy  prerogative^  applicable  only  to  the 
royal  family ;  and  guardianship  hy  election  of  the  mfant, 
which  appears  to  us  more  properly  considered  at  this  day  in 
connection  with  the  appointment  of  chancery  guardians.  But 
guardianship  hy  nature  and  nurture^  guardianship  in  socage^ 

1  Bl.  Com.  460;  2  Kent  Com.  220.  ing  guardianship  unrler  Stat.  4  &  5  P. 

2  Macphers.  Inf.  2  et  seq.,  to  which  &  M.  c.  8,  aUuded  to  in  I  El.  Coin.  4GI, 
the  reader  is  referred  for  a  full  account  and  repealed  by  9  Geo.  IV.  c.  ."1.  See 
of  these  kinds  of  guardianship,  includ-  also  1  Bl.  Com.  461,  and  llarg.  notes. 

26  401 


§  285  THE   DOMESTIC   RELATIONS.  [PxVRT   IV. 

testamentanj  guardianship^  and  chancery  guardianship^  require 
special  consideration,  and  these  will  be  taken  up  in  order. 

§  285.  English  Doctrine  ;  Guardianship  by  Nature  and  Nur- 
ture.—  Guardianship  by  nature  and  nurture  denotes  hardly 
more  or  less  than  tlie  natural  right  of  parents  to  the  care  and 
custody  of  their  children.  It  has  been  usual  to  treat  of 
guardians  by  nature  as  distinct  from  guardians  by  nurture  ; 
but  in  reality  the  latter  constitute,  for  practical  purposes, 
only  a  species  of  the  former.  Mr.  Macpherson  considers 
them  together,  and  doubts  whether  guardianship  by  nature, 
as  known  in  the  old  law,  has  existed  since  the  time  of 
Charles  II.,  when  feudal  tenures  were  abolished  ;  for  it 
appears  to  have  originated  in  the  practice  of  selling  the 
marriage  of  the  heir.^ 

Guardianship  by  nature  and  nurture  belongs  exclusively  to 
the  parents :  first,  to  the  father,  and,  on  his  death,  to  the 
mother.  The  father's  right  was  formerly  preferred  to  the 
mother's  in  all  cases,  while  the  modern  tendency  is  otherwise. 
The  office  of  natural  guardian  lasted  during  the  minority  of 
the  child;  but  guardianship  by  nurture  ceased  when  he  at- 
tained the  age  of  fourteen.  So  guardianship  by  nature  ap- 
plied to  the  heir  apparent  or  presumptive,  and  guardianship  by 
nurture  to  the  other  children.  Guardianship  by  nature  was 
something  higher  than  guardianship  by  nurture.^  But  it  is, 
nevertheless,  clear  that  the  father  has  a  right,  recognized  by 
general  law,  to  the  custody  of  all  his  children,  not  only  dur- 
ing the  period  of  nurture,  but  until  the  age  of  majority.  So, 
too,  the  mother,  if  not  superseded  by  the  infant's  election  at 
fourteen,  or  by  the  appointment  of  a  new  guardian,  has,  in 
the  absence  of  the  father,  the  legitimate  care  of  the  child  for 
the  same  period.^ 

The  authority  of  such  guardians  extends  only  to  the  ward's 
person.  They  have  no  right  to  intermeddle  with  his  prop- 
erty.*    Blackstone  says  that,  if  an  estate  be  left  to  an  infant, 

1  Macpliers.  Inf  52,  58.  See  also  1  ^  ]\lacphers.  Inf.  61,  65 ;  supra,  §§  245, 
Bl.  Com.  461,  and   Harg.  notes  1  &  3  ;     252. 

2  Kent  Com.  220,  221.  4  i  Bl.  Com.  461,  and  Harg.  notes  ; 

2  1  Bl,  Com.  461,  and  Harg.  not-es ;  2  Kent  Com.  220,  221  ;  Hyde  v.  Stone, 
2  Kent  Com.  220,  221.  7  Wend.  354;  Kline  v.  Beebe,  6  Conn. 

402 


CHAr.  I.]  GUARDIANS   IN    GENERAL.  §  286 

the  father  is,  hy  common  law,  the  guardian,  and  must  ac- 
count to  his  child  for  the  profits.  But  this  is  only  because 
the  law  holds  him  and  all  others  responsible  as  a  quasi  guar- 
dian ;  and  it  is  well  settled  at  the  present  day,  that  if  a  child 
becomes  vested  with  property  during  his  father's  lifetime, 
there  is  no  one  strictly  authoiized  to  take  it  until  a  guardian 
has  been  duly  appointed. 

Guardianship  by  nature  and  nurture  is  inferior  to  guardian- 
ship in  socage  ;  and  it  yields  to  every  kind  of  guardianship 
which  exists  by  strict  appointment,  so  far  as. the  ward's  prop- 
erty is  concerned,  though  not  necessarily  as  to  his  person. 

§  286.  English  Doctrine ;  Guardianship  in  Socage.  —  Guar- 
dianship in  socage  arises,  at  common  law,  whenever  an  infant 
under  fourteen  acquires  title  to  real  estate ;  the  chief  object 
of  the  trust  being  the  protection  of  such  property  and  the 
instruction  of  the  young  heir  in  the  jDursuit  of  agriculture.^ 
It  applies  only- when  the  infant  has  land  by  descent,  and  can- 
not exist  if  his  estate  be  merely  personal.  His  title,  too, 
must  be  legal  and  not  merel}^  equitable ;  hence  it  would  seem 
that  there  cannot  be  a  guardian  in  socage  where  the  interest 
of  the  ward  is  only  reversionary .^  This  species  of  guardian- 
ship was  anciently  assignable,  so  far  at  least  as  the  custody  of 
the  infant  was  concerned  ;  but  by  the  doctrine  and  practice 
of  later  times  it  became  regarded  as  a  strictly  personal  trust, 
neither  transmissible  by  succession,  nor  devisable,  nor  as- 
signable.^ 

The  duty  of  the  guardian  in  socage  is  to  take  possession  of 
the  heir's  person  and  real  estate,  to  receive  the  rents  and 
profits  until  the  heir  reaches  the  age  of  fourteen,  to  keep  his 
evidences  of  title  safely,  and  to  bring  him  up  well.*  His 
powers  are  commensurate  with  his  duties.  He  acquires  by 
virtue  of  his  office  an  actual  estate  in  tlie  ward's  land,  though 
not  to  his  own  use  ;  ^  he  may  gain  a  settlement  by  actual  res- 

404;  Fonda  v.  Van  Home,  15  Wend.  3  Macpliers.  Inf.  20  et  seq.\  2  Bl. 
631.  Com.  461,  and  Harg.  n.;  2  Kent  Com. 

1  1  Bl.  Com.  461,  and  Harg.  n.  ;  2    223. 

Kent  Com.  220;  Dagley  v.  Tolferry,  1  *  Co.  Litt.  89;  iMacphers.  Inf.  28. 

P.  Wms.  285.  5  piowd.  ch.  293 ;    Macpliers.   Inf. 

2  Macpliers.  Inf.  19 ;  2  Bl.  Com.  88.    28 ;  Rex  v.  Sutton,  3  Ad.  &  El.  697. 

403 


§  287  THE   DOMESTIC    RELATIONS.  [PART   IV. 

idence  upon  it ;  ^  and  he  can  grant  leases  terminable,  and 
perhaps  even  void,  when  the  ward  reaches  the  age  of  four- 
teen.2  A  guardian  in  socage  cannot  be  removed  from  office, 
but  the  ward  may  supersede  him,  at  this  age,  by  a  guardian 
of  his  own  choice.^ 

Guardianship  in  socage  has  been  said  to  extend  to  the 
heir's  personal  property  ;  but  there  is  insufficient  legal  au- 
thority for  such  a  supposition,  though  it  is  likely  that  the 
farm-stock  and  household  chattels  of  the  ward  were  included  ; 
and  when  this  guardianship  was  common,  personal  property- 
consisted  of  little  else.* 

One  peculiarity  of  this  guardianship  was,  that  the  trust 
belonged  only  to  such  next  of  blood  to  the  child  as  conld  not 
possibly  inherit,  and  it  devolved  upon  him  without  appoint- 
ment ;  the  common  law,  with  a  characteristic  distrust  of 
human  nature,  deeming  it  imprudent  to  confide  the  child's 
interests  to  one  who  expected  the  succession.  For,  as  For- 
tescue  and  Sir  Edward  Coke  affirmed,  to  commit  the  custody 
of  the  infant  to  such  a  person,  was  like  giving  up  a  lamb  to 
a  wolf  to  be  devoured.^  Guardianship  in  socage  has  passed 
into  disuse,  though  it  cannot  be  said  to  have  been  actually 
abolished. 

§  287.  English  Doctrine  ;  Testamentary  Guardianship.  —  Tes- 
tamentary guardianship  was  instituted  by  the  statute  of  12 
Car.  II.  c.  24,  and  for  this  reason  testamentary  guardians  are 
sometimes  called  statute  guardians.*^  This  statute  provided 
that  any  father,  whether  an  infant  or  of  full  age,  might,  by 
deed  executed  in  his  lifetime,  or  by  his  last  will  and  testa- 
ment, dispose  of  the  custody  and  tuition  of  his  child,  either 
born  or  unborn,  to  any  person  or  persons  in  possession  or  re- 
mainder, other  than  popish  recusants ;  such  custody  to  last 
till  the  child  attained  the  age  of  twenty-one,  or  for  any  less 
period,   and  to  compreliend,  meantime,  the  entire  manage- 

1  Rex  V.  Oakley,  10  East,  491 ;  Mac-  *  Macphers.  Inf.  31 ;  Bedell  v.  Con- 
phers.  Inf.  28.  stable,  Vaugh.  185.    But  see  Harg.  n. 

2  Bac.    Abr.    Leases,  i.   9;    1    Ld.     67  to  Co.  Litt.  89. 

Raym.  131;  Rex  v.  Sutton,  5  Nev.  &         &  Co.  Litt.  88  i;  1  Bl.  Com.  462. 
M.  353;  Macphers.  Inf.  35,  36.  «  1  Bl.  Com.  462. 

3  Co.  Litt.  89  (I ;  Macphers.  Inf.  41. 

404 


CHAP.  1.]  GUARDIANS   IN    GENERAL.  §  287 

ment  of  his  estate,  both  real  and  personal.  So  far  as  popish 
recusants  are  concerned,  this  statute  has  since  been  modified ; 
and  all  religious  disabilities  as  to  the  office  are  now  removed  ;  ^ 
and  since  the  statute  of  1  Vict.  c.  26,  an  infant,  though  the 
father,  cannot  exercise  the  right  of  testamentary  appointment ; 
otherwise,  the  statute  remains  in  force.  Under  this  English 
law  it  matters  not  what  are  the  father's  religious  opinions.^ 
But  a  mother  cannot  appoint,  nor  a  putative  father,  nor  a 
person  in  loco  parentis? 

The  important  question,  arises,  under  this  statute,  whether 
the  words  "  by  deed  executed  in  his  lifetime  "  permits  the 
father  to  dispose  of  his  children  by  any  instrument  not  testa- 
mentary he  may  see  fit  to  make.  Lord  Eldon  was  of  the 
opinion  that  he  could  not,  but  was  confined  to  a  testamentary 
instriunent  in  the  form  of  a  deed,  which  cannot  operate  dur- 
ing life  and  may  be  revoked  at  pleasure.'*  Such  is  doubtless 
the  English  law  at  the  present  day.^ 

Testamentary  guardianship  gives  the  custody  of  the  ward's 
person,  and  of  all  his  real  and  personal  estate  ;  and  it  em- 
braces not  only  such  property  as  comes  to  the  ward  through 
descent,  devise,  bequest,  or  inheritance  from  the  father,  but 
all  that  he  may  acquire  from  any  person  whomsoever,  and 
whether  real  or  personal.  This  shows  that  the  guardian's 
interest  is  derived  not  from  the  father,  but  from  the  law 
itself,  for  the  father  could  give  him  no  interest  over  that 
which  was  never  his  own.^ 

Besides  having  the  advantage  of  full  control  over  the 
ward's  entire  estate,  the  testamentary  guardian  stands  better 
than  the  guardian  in  socage,  inasmuch  as  his  power  lasts  until 
the  ward  reaches  his  majority,  unless  the  father  has  seen  fit 
to  limit  his  trust  to  a  less  period. 

Testamentary  guardianship,  as  now  understood,  was  uu- 

1  31  Geo.  III.  c.  32 ;  4  Mont.  &  C.  087  ;  367  ;  Earl  of  Sliaftesbury  v.  Lady  Han- 
Corbet  V.  Tottenliani.  1  Ball  &  B.  59.        nam,  Finch  Rep.  32;I 

2  Villareal  v.  Mellish,  2  Swanst.  538.  5  Macpherson  intimates  a  different 
8  Macpliers.    Inf.    83;    1    Bl.    Com.     opinion.     See  Macphers.   Inf.  84;   Le- 

462,  liars-  ". ;  Vaugh.  180 ;  3  Atk.  519 ;     cone  v.  Slieire.s,  1  Vern.  442. 
supra,  §§  245,  283.  o  Macphers.  Inf.  91.     See  also  Gil- 

*  Ex  parte  Earl  of  Ilchester,  7  Ves.    liat  v.  Gilliat,  3  Phillim.  222. 

405 


§  28S  THE   DOMESTIC    RELATIONS.  [PAET   IV. 

known  to  the  common  law.  Lord  Alvanley  said,  in  Ex  parte 
Ilchester  :  "  It  is  clear,  by  the  common  law,  a  man  could  not, 
by  any  testamentary  disposition,  affect  either  his  land  or  the 
guardianship  of  his  children.  The  latter  appears  never  to 
have  been  made  the  subject  of  testamentary  disposition  till 
the  statute  12  Charles  11."^  But  it  seems  probable,  from 
some  expressions  of  Lord  Coke,  that,  so  far  as  the  custody  of 
the  ward's  person  was  concerned,  though  not  as  to  his  lands, 
testamentary  dispositions  were  not  unknown  to  the  old  com- 
mon law,  and  that  this  testamentary  guardian,  sometimes 
confounded  with  the  guardian  for  nurture,  had  the  care  of 
the  child  until  he  reached  the  age  of  fourteen,  with  power  to 
dispose  of  his  chattels.^ 

§  288.  English  Doctrine  ;  Chancery  Guardianship.  —  Guardians 
by  appointment  of  a  court  of  equity,  or  chancery  guardians^  as 
they  are  termed,  have,  within  the  last  century,  assumed  such 
importance,  as  almost  to  supersede,  in  the  English  practice, 
the  other  kinds,  except  perhaps  the  testamentary  guardian. 
The  earliest  known  instance  of  such  an  appointment  occurred 
in  1696.3  Blackstone  speaks  of  the  practice  in  his  day  as 
applicable  chiefly  to  guardians  with  large  estates,  who  sought 
to  indemnify  themselves  and  to  avoid  disagreeable  contests 
with  their  wards,  by  placing  themselves  under  the  direction 
of  the  Court  of  Chancery.'*  The  origin  of  this  guardianship 
is  ob.-^cure.  JNIr.  Hargrave  considered  it  an  act  of  usurpation  by 
the  Lord  Chancellor,  but  admitted  the  jurisdiction  to  have 
been  fully  established  in  his  time.^  Fonblanque  warmly  con- 
troverts the  charge  of  usurpation,  claiming  that  the  jurisdic- 
tion exercised  by  the  Court  of  Chancery  over  infants  flows 
from  its  general  authority,  as  delegated  by  the  crown.^  This 
latter  view  has  met  with  the  best  judicial  approval ;  for,  as 
Lord  Hardwiclve  and  others  have  expressed  it,  the  State  must 
place  somewhere  a  superintending  power  over  those  who  can- 
not take  care  of  themselves  :  and  hence  chancery  necessarily 

1  7  Ves.  370.  *  1  Bl.  Com.  463. 

2  Co.  Lit.  87  6;  Co.  Cop.  §  23  ;  Mac-         ^  Co.  Litt.  89  a,  Harg.  n.  70. 
phers.  Inf.  68.  ^  2  Fonb.    Eq.   228,  n.,  5th  ed. ;  2 

3  Case  of  Hampden.     See  Co.  Litt.  Story  Eq.  Juris.  §  1333. 
88  h,  Harg.  n. 

406 


CHAP.  I.]  GUARDIANS    IX   GENERAL.  §  288 

acts,  representing  the  sovereign  as  parens  2'>atrice}  From  tlie 
peculiar  nature  and  restrictions  of  the  other  kinds  of  guar- 
dianship, many  orphans,  whose  fathers  had  failed  to  appoint 
a  testamentary  guardian  for  them,  would  be  otherwise  with- 
out protection  either  of  j^erson  or  property.  Whatever  may 
be  the  origin  of  the  jurisdiction  by  virtue  of  which  courts  of 
chancery  appoint  guardians  in  such  cases,  the  right  of  making 
such  appointments,  and  in  general  of  controlling  the  persons 
and  estates  of  minors,  has  long  been  firmly  established,  and 
cannot  at  this  day  be  shaken. 

An  infant  is  constituted  a  ward  in  chancery  whenever  any 
one  brings  him  in  as  party  plaintiff  or  defendant,  by  a  bill 
asking  the  directions  of  the  court  concerning  his  person  or 
estate,  or  the  administration  of  property  in  which  he  is  in- 
terested.^  In  this  character  he  is  treated  as  under  its  special 
protection.  Again,  a  petition  may  be  presented  for  the  ap- 
pointment of  a  chancery  guardian,  alleging  that  the  infant 
has  estate,  real  or  personal.  But  the  mere  appointment  of  a 
guardian,  in  this  instance,  will  not  make  him  a  ward  in  chan- 
cery.^ "Where  a  suit  is  pending,  the  court  appoints  a  guardian 
of  the  person  only  ;  in  other  cases  a  guardian  of  the  person 
and  estate.^  So  chancery  will  appoint  a  guardian  on  petition, 
where  testamentary  guardians  decline  to  act ;  and,  if  neces- 
sar}'-,  determine  on  petition  the  right  of  a  guardian  already 
appointed.^ 

As  to  the  general  jurisdiction  of  chancery  over  infants,  it 
may  be  observed  that  in  the  appointment  and  removal  of 
guardians,  in  providing  suitable  maintenance,  in  awarding 
custody  of  the  person,  and  in  superintending  the  management 
and  disposition  of  estates,  the  chancery  court  wields  large 
powers  for  the  benefit  of  tlie  young  and  helpless.  This  juris- 
diction, being  clear  of  technical  rules  and  dependent  upon  the 
discretion  of  the  Chancellor,  adapts  itself  far  more  readily  to 
the  various  grades  of  society,  the  intention  of  testators,  the 

1  Butler   V.   Freeman,    Ambl.    301.  2  ^acphers.  Inf.  103;  AmbL  302,  n. 

See  Lord  Tliurlow,  in  Powell  r.  Cleaver,  8  IMacphers.  Inf.  104. 

2  Bro.  C.  C.  499 ;  Lord  Eldon,  in  De  *  Ih.  105. 

Manneville  v.  De  Manneville,  10  Ves.  ^  7j_  io4. 
52. 

407 


§  289  THE   DOMESTIC   RELATIONS.  [PART   IV. 

wants  and  wishes  of  the  infants  themselves,  and  the  different 
varieties  of  property,  than  all  the  other  guardianships  com- 
bined.i  By  compelling  trust  officers  to  give  security  to  in- 
vest under  its  direction,  and  to  keep  regular  accounts,  the 
court  exerts  a  wholesome  restraint  on  the  ward's  behalf, 
while  at  the  same  time  it  arms  the  guardian  against  all  at- 
tacks of  a  capricious  heir,  by  affording  its  sanction  to  his 
official  acts. 

Chancery  guardians  are,  in  general,  only  appointed  where 
there  is  property ;  but  this  is  because  guardianship  can 
scarcely  be  necessary  otherwise.  Chancery,  as  Lord  Eldon 
observed,  cannot  take  on  itself  the  maintenance  of  all  the 
children  in  the  kingdom.^  Hence  persons  de.^iring  to  call  in 
the  authority  of  the  court  for  the  protection  of  an  infant 
sometimes  resort  to  the  expedient  of  settling  a  sum  of  money 
upon  him.^  The  great  objection  to  chancery  guardianship  is 
its  expense  ;  and  the  lavish  outlay  of  money  which  becomes 
requisite  at  every  step  renders  the  practical  benefit  to  the 
minor  often  questionable.  Less  cumbrous  machinery  would 
remedy  this  evil.  There  are  some  English  statutes  relating  to 
the  poor,  the  employment  of  apprentices,  and  the  like,  which, 
in  connection  with  the  writ  of  habeas  corpus^  are  designed  to 
supersede,  in  a  measure,  the  necessity  of  personal  guardian- 
ship, for  those  who  are  without  pro^^erty  and  yet  need 
protection.* 

§  289.  English  Doctrine;  Guardianship  by  Election  of  Infant. 
—  Guardianship  by  election  of  the  infant  deserves  a  passing 
notice.  We  have  seen  that  the  infant  in  socage  had  the 
right  of  choosing  a  guardian  at  the  age  of  fourteen.  This 
age  was  recognized  also  as  the  limit  to  guardianship  for  nur- 
ture ;  the  law  choosing  to  yield  somewhat  to  the  ward's  dis- 
cretion thenceforth.^  The  socage  ward  might  therefore,  if  he 
had  no  testamentary  guardian,  choose  one  to  act  on  liis  be- 
half until  majority,  by  executing  a  deed  for  that   purpose. 

1  1  Bl.  Com.  468,  Har<r.  »>.  *  1  Bl.  Com.  4G3,  Harg.  n.,  and  acts 

2  Wellesley  v.  Duke  of  Beaufort,  2  there  enumeratetl. 
Russ.  21.  ^  Supra,  §  285. 

3  Alacphers.  Inf.  103. 

408 


CHAi\  l.J  GUARDIANS   IN   GENERAL.  §  290 

But  little  is  really  known  on  this  subject,  and  the  instances 
mentioned  in  the  books  are  exceedingly  rare.^  Blackstone 
again,  speaking  of  guardians  for  nurture,  adds  that,  in  default 
of  father  or  mother,  the  ordinary  usually  assigns  some  dis- 
creet person  to  take  care  of  the  infant's  personal  estate,  and 
to  provide  for  his  maintenance  and  education.^  The  practice 
in  the  spiritual  court  was  to  permit  the  minor,  when  of  suit- 
able age,  to  nominate  his  guardian  subject  to  its  approval. 
This  was  but  a  limited  privilege  after  all,  though  it  seems  to 
have  been  granted  to  all  children  between  seven  and  twenty- 
one.^  It  is  manifestly  different  from  the  right  of  election 
allowed  the  socage  ward.  The  authority  of  spiritual  courts 
to  appoint  a  guardian  of  the  person  and  estate  was  emphati- 
cally denied  by  Lord  Hardwicke,  and  chancery  afterwards 
took  this  guardianship  completely  into  its  own  keeping.  The 
infant,  above  the  age  of  fourteen,  is  still  permitted  to  nomi- 
nate his  guardian  before  the  Court  of  Chancery ;  but  his  nom- 
ination does  not  supersede  the  authority  of  the  court,  whether 
he  be  a  socage  ward  or  not.*  Guardianship  by  election  of  the 
infant  has  thus  become  a  misnomer,  for  he  does  not  absolutely 
elect. 

§  290.  Classification  of  Guardians  of  Minors  in  the  United  States; 
Nature  and  Nurture,  Socage,  and  Testamentary. —  Guardianship 
in  the  United  States  differs  considerably  from  guardianship  in 
England.  Here  the  whole  subject  is  controlled  in  a  great 
measure  by  local  statutes.  There  are  fewer  kinds  of  guardians 
found  in  American  practice,  though  some  of  the  more  im- 
portant classes  are  recognized  to  a  limited  extent.  Thus 
guardianship  by  nature  and  nurture,  or  the  parental  right  of 
custody,  prevails  in  most  of  the  States.  But  as  all  children, 
male  and  female,  inherit  alike  with  us,  guardianship  by  nur- 
ture is  not  even  so  clearly  distinguished  from  guardianship  by 
nature,  as  in  the  English  practice.^ 

1  Co.  Litt.  88  b,  Harg.  n.  16 ;  Mac-  v.  Science,  3  Atk.  631 ;  Macphers.  Inf. 

phers.  Inf.  77.  74,  78. 

■•2  1  Bl.  Com.  461.  6  2   Kent   Com.   221 ;  Reeve   Dom, 

8  Fitzgib.  164 ;  Co.  Litt.  88  b,  Harg.  Rel.  315;  Macready  v.  Wilcox,  33  Conn. 

n.  16.  321. 


*  Co.  Litt.  88  b,  Harg.  n.  16;  Eughes 


409 


§  200  THE  DOMESTIC   RELATIONS.  [PART   IV. 

Guardianship  in  socage  was  never  common  in  the  United 
States.  But  traces  of  its  existence  are  to  be  found.  Thus 
in  1809,  a  guardian  in  socage,  in  New  York,  was  permitted  to 
bring  trespass  and  ejectment.^  This  species  of  guardianship 
is  now  almost  wholly  superseded.  In  fact  it  could  seldom 
have  arisen,  since  half-blood  and  whole-blood  relatives  in  this 
country  inherit  alike;  so  that  a  blood  relation  who  cannot 
possibly  inherit  could  rarely  be  found  to  assume  the  duties  of 
the  office.2  A  father  who  holds  lands  for  life,  with  the  re- 
mainder vested  in  his  children,  cannot  be  their  guardian  in 
socage.^  And  the  lease  of  his  ward's  lands  by  any  such 
guardian  may  be  defeated  by  the  appointment  of  another 
guardian,  pursuant  to  the  statute,  who  elects  to  avoid  it.* 

We  have  testamentary  guardians,  with  essentially  the  same 
powers  and  duties  as  in  England.  The  statute  of  12  Charles 
II.  has  been  enacted  in  most  of  the  United  States,  with  the 
language  somewhat  changed.  No  religious  disabilities  are 
imposed  in  our  law.  But  while  some  States  follow  the 
words  of  the  ancient  statute  as  to  minor  fathers,  the  right  is 
elsewhere  restricted  to  such  as  are  competent  to  make  a  will ; 
and  this  is  a  preferable  expression.  For  precise  modifications 
the  student  should  consult  the  laws  of  his  own  State.  Some 
statutes  use  the  words  "deed  or  will."  The  Ohio  statute 
drops  the  word  "  deed  "  altogether.  And  not  uncommonly  is 
it  found  in  America  that  testamentary  guardians  can  only  be 
appointed  by  a  will  executed  with  the  usual  solemnities.^ 

The  right  of  testamentary  appointment  is  still  confined  to 
the  father  in  most  States.  But  an  Illinois  statute  permits  the 
mother,  if  not  remarried,  to  appoint  such  a  guardian,  pro- 
vided no  appointment  was  previously  made   by  the  father. 

1  Byrne  v.  Van  Hoesen,  5  Johns.  66.  Pierce,  12  How.  Pr.  5.S2  ;  Vanartsdalen 

See  also  .Jackson  u.  De  Walts,  7  Johns,  v.    Vanartsdalen,    14    Penn.    St.    384; 

157.  Wardwcll  v.  Wardwell,  9  Allen,   518. 

"2    Kent    Com.    222,    223;    Reeve  In  New  York  the  father's  right  to  ap- 

Dom.  Rel.  315,  316.  point  a  testamentary  guardian  is   de- 

!i  Graham  y.  Houghtalin,  1  Vroom,  rived  exclusively  from  the  local  statnte. 

552.  Thomson  v.  Thomson,  55  How.  (N.  Y.) 

4  Emerson  v.  Spicer,  46  N.  Y.  594.  Pr.  494.     A  mother  has  no  power  to  ap- 

5  See  2  Kent  Com.  225,226;  Hoyt  point  nnless  tlie  statute  is  explicit. 
V.  Hellen,  2  Edw»  Ch.  202;  Matter  of  Ex  parte  Bell,  2  Tenn.  Ch.  27. 

410 


CHAP.  I.]  GUARDIANS   IN   GENERAL.  §  291 

111  New  York,  the  consent  of  the  mother,  if  living,  was  lately 
required  to  a  testamentary  appointment  by  the  father;^  a 
provision  afterwards  repealed.^  So,  too,  the  English  principle 
prevails,  that  the  testator  can  appoint  a  guardian  over  his  own 
children  only  ;  the  right  extending,  however,  to  posthumous 
offspring.  He  cannot  appoint  guardians  for  other  children, 
though  he  give  them  his  property  .^  But  where  a  statute  pro- 
vides that  a  child  may  be  adopted  by  one  with  the  same 
rights  as  if  the  offspring  were  his  own,  it  seems  just  that  the 
father,  thus  constituted,  should  have  the  right  of  appointing 
a  testamentary  guardian  for  his  adopted  child,  just  the  same 
as  for  other  children.*  A  grandfather  has  no  right  to  appoint 
a  testamentary  guardian.^ 

§  291.  American  Doctrine  ;  Chancery  and  Probate  Guardian- 
ship.—  Chancery  guardianship  may  be  considered  as  adopted 
to  some  extent  in  this  country.  The  supreme  courts  in  many 
States  have  now  full  chancery  powers,  as  in  England,  over 
the  persons  and  estates  of  infants ;  they  may  order  invest- 
ments, decree  care  and  custody  of  the  person,  take  children 
under  their  protection  as  wards  of  the  court  in  certain  cases, 
regulate  the  conduct  of  guardians,  and  otherwise  exercise 
the  important  functions  which  vest  in  the  English  equity 
courts.  But  English  chancery  jurisprudence  is  one  thing, 
and  that  of  the  United  States  another.  While  in  one  coun- 
try the  appointment,  removal,  and  general  supervision  of 
guardians  belong  immediately  to  the  equity  courts,  in  the 


1  N.  Y.  Stat.  18G2,  c.  172.     And  see  the  cuslorly  of  the  minor  chikl  by  order 

Sackett's  Estate,  1  Tuck.  (N.  Y.  Surr.)  of  court,  has  presumably,  as  such,  no 

84  such    riglit    to    appoint,   especially  if 

-  Stat.  1871,  construed  in  Fitzgerald  divorced  for  her  fault.     McKinney  r. 

V.  Fitzgerald,  31  N.  Y.  Supr.  370.  Noble,  37  Tex.  731.     Divorce,  it  would 

3  Brigham  y.  Wheeler,  8  Met.  127;  appear,  does  not  take  away  the  father's 

2  Kent  Com.  225.  power  to  appoint  a  testamentary  guar- 

*  As  to  divorced  parents,  the  ques-  dian.     See  Hill   v.    Hill,   49   Md.   450, 

tion  of   testamentary  guardianship   is  where  custody  of  the  child  was  given  to 

presented  under  a  new  aspect.     Where  the  father  with  a  right  of  access  to  the 

a  mother  is  allowed  by  statute  or  other-  mother. 

wise  to  dispose  of  the  guardianship  of  ^  Fullerton  v.  Jackson,  5  Jolms.  Ch. 

lier  minor  child,  by  will,  slie  is  assumed  278;  Ex  parte   Bell,  2  Tenn.  Ch.  327. 

to  have  been  the  survivor  of  her  hus-  See  further,  as  to  the  appointment  of 

band.     A  divorced  wife,  invested  with  testamentary  guardians,  c.  2,  post. 

411 


§  291  THE   DOMESTIC   RELATIONS.  [PART   IV. 

other  a  special  tribunal  is  usually  created  by  local  statute  for 
such  matters.  It  is  this  special  tribunal — somewhat  resem- 
bling the  English  ecclesiastical  court — which  alone  issues 
letters  of  guardianship,  revokes  them,  and  superintends  trust 
accounts  in  the  first  instance.  The  guardians  thus  chosen 
have,  in  general,  the  rights  and  duties  of  chancery  guardians 
of  tlje  person  and  estate. 

The  propriety  of  distinguishing  between  chancery  guar- 
dians and  those  appointed  by  the  special  courts  of  this  coun- 
try—  whether  known  as  the  probate,  orphans',  ordinary's,  or 
surrogate's  court  —  is  obvious  when  the  origin  of  our  pro- 
bate jurisdiction  is  considered.  At  the  time  America  was 
colonized,  chancery  guardianship  was  unknown  in  England. 
The  ecclesiastical  or  spiritual  courts,  independent  of  all  tem- 
poral authority,  controlled  the  estates  of  orphans  and  their 
deceased  parents.  The  necessity  of  some  tribunal  with  pro- 
bate jurisdiction  was  soon  apparent  to  our  ancestors ;  but, 
rejecting  the  idea  of  a  church  establishment,  they  distributed 
probate  and  equity  powers  among  the  common-law  courts. 
Their  judicial  system  was  at  first  simple  :  that  of  local  county 
courts  with  a  supreme  tribunal  of  appeal.  With  the  growth 
of  population  came  a  division  of  these  powers  in  the  infe- 
rior courts.  New  county  tribunals  were  erected  for  business 
appertaining  to  estates  of  the  dead,  testamentary  trusts,  and 
the  care  of  orphans  ;  a  blending,  as  it  were,  of  ecclesiastical 
and  equity  functions.  The  old  county  courts  were  left  to 
their  common-law  jurisdiction,  while  the  supreme  tribunal 
retained  control  over  them  all,  exercising  appellate  powers  in 
common  law,  equity,  and  ecclesiastical  suits.  Such,  in  a 
word,  is  the  general  origin  of  guardianship  by  judicial  ap- 
pointment in  this  country.^  While  the  English  chancery 
court  was  slowly  extending  its  rights  over  the  persons  and 
estates  of  infants,  another  system  was  in  process  of  growth 
on  this  side  of  the  water,  borrowing  from  English  law  as 
occasion  offered,  and  adapting  itself  to  the  increasing  wants  of 
our  own  community.  This  system,  fostered  doubtless  by  a 
strong  prejudice  against  chancery  practice,  with  its  expensive- 
1  See  Smith  (Mass.)  Prob.  Pract.  1-5. 

412 


CHAP.  I.]  GUARDIANS    IN   GENERAL.  §  292 

ness  and  prolixity  of  pleadings,  a  prejudice  widely  prevalent 
during  the  last  century,  especially  in  New  England,  spread 
gradually  into  the  new  States  and  Territories,  the  creature  of 
statute  law  wherever  it  went. 

Much  confusion  has  arisen  in  our  courts  wherever  this  dis- 
tinction has  not  been  kept  in  view.  The  law  of  guardianship 
is  often,  discussed  as  though  we  inherited  the  English  chan- 
cery system,  when  in  truth  our  usual  practice  is  without  its 
counterpart  abroad.  The  only  American  text-writers  of 
authority  on  this  subject.  Reeve  and  Kent,  have  contributed 
to  this  perplexity.  The  former  was  not  precise  in  his  classi- 
fication.^ The  latter  unwisely  confused  American  and  Eng- 
lish appointments,  applying  the  term  chancery  guardians  to 
both.2  But  the  courts  have  sometimes  perceived  the  neces- 
sity of  a  separate  name  for  guardians  appointed  by  courts 
of  probate  jurisdiction.  Accordingly,  they  have  been  called 
guardians  of  the  person  and  estate  ;  ^  but  this  name  is  quite  as 
appropriate  to  others.  So,  too,  they  are  designated  as  statute 
guardians ;  but  there  are  statute  modifications  applied  to  all 
kinds  of  guardians,  and  besides,  this  name  was  long  ago  be- 
stowed b}'  English  writers  upon  testamentary  guardians.^  We 
shall  apply,  then,  in  these  pages  for  want  of  something  better, 
the  distinguishing  term  probate  guardians;  this  being  suffi- 
ciently precise  and  suggestive  ;  though  it  is  admitted  that  the 
appointing  power  is  not  lodged  in  tribunals  styled  probate 
courts  in  every  State,  nor  necessarily  separated  from  courts 
exercising  common-law  functions. 

§  292.  Guardianship  by  the  Civil  Law.  —  By  the  civil  law, 
minority  was  divided  into  two  distinct  periods  ;  the  first  last- 
ing until  the  age  of  puberty,  fourteen  in  males,  and  twelve  in 
females ;  the  second  continuing  from  that  time  until  majority. 
During  the  first  period,  the  guardian  was  called  tutor^  and  the 
children  pupils.  During  the  second  period,  the  guardian  was 
called  curator,  and  the  children  minors :  the  curator  being 
appointed  with  special  reference  to  the  management  of  prop- 

1  Rppve  Dom.  Eel.  311.  3  See    Arthur's    Appeal,    1    Grant 

2  2  Kent  Com.  226.  (Penn.),  55. 

*  See  supra,  §  2^7. 

413 


§  293  THE   DOMESTIC   EELATIONS.  [PART   IV. 

erty.^  The  same  general  divisions  are  to  be  found  in  the  law 
of  continental  Europe  at  the  present  day,  though  modified 
somewhat  by  custom ;  also  in  Scotland  ;2  also  in  Louisiana, 
and  other  parts  of  this  country,  which  were  formerl}^  under 
French  and  Spanish  dominion.  But  the  term  curator  is  in 
some  codes  applied  to  the  guardian  of  the  estate  of  the  ward 
as  distinguished  from  the  guardian  of  the  person.^ .  So  the 
civil  law  recognized  three  kinds  of  guardianship  :  tutela  testa- 
mentaria^  conferred  by  testament ;  legitima,  by  the  law  itself ; 
dativa,  by  the  authority  of  the  judge.*  These  divisions  have 
their  corresponding  analogies  in  English  and  American  law  ; 
since  we  may  place  testamentary  guardians  in  the  first  class, 
socage  and  natural  guardians  in  the  second,  and  chancery  and 
probate  guardians  in  the  third. 

§  293.  Guardians  of  Idiots,  Lunatics,  Spendthrifts,  &c.  —  The 
different  kinds  of  guardianship  for  minors  having  been  con- 
sidered, we  proceed  to  speak  briefly  of  guardians  for  idiots, 
lunatics,  and  spendthrifts,  though  this  subject  comes  hardly 
within  our  scope.  Under  the  king's  sign-manual,  the  Lord 
Chancellor  was  invested  with  jurisdiction  over  the  persons 
and  estates  of  insane  persons.  For  this  reason  did  chancery 
claim  authority ;  not  by  virtue  of  the  king's  prerogative  as 
parens  patrice ;  for  idiots  and  lunatics,  it  is  said,  were  not 
under  the  protection  of  the  sovereign  until  the  time  of 
Edward  IL^  Lunatic  asylums  are  provided  by  law,  and 
regulated  from  time  to  time.  For  legally  determining  the 
question  of  insanity  in  any  case,  chancery  grants  a  commis- 
sion in  the  nature  of  a  writ,  directed  to  masters  in  lunacy  ; 
and  if  the  subject  be  found  non  compos,  the  court  commits 
his  person,  together  with  a  suitable  allowance  for  his  main- 
tenance, to  some  person  who  is  then  called  his  committee.^ 
Blackstone  states  that  the  rule  in  his  day  was  to  refuse  this 
guardianship  to  the  lunatic's  next  of  kin,  "  because  it  is  his 

1  Story  Confl.  Laws,  §  493  ;  3  Burge  *  Co.  Cop.  §  23 ;  Macpbers.  Inf.  573 ; 
Col.  &  For.  Laws,  980,  1001-1014.  3  Burge  Col.  &  For.  Laws.  931. 

2  Fraser  Guardian  &  Ward,  145.  ^  2  Story  Eq.  Juris.  §§  1335,  1336; 

3  2    Kent    Com.    224;    Duncan   v.  1  Bl.  Com.  303 ;  3  P.  Wins.  108. 
Crook,  49  Mo.  116.  ^  1  bi.  Com.  306.    See  Lunacy  Reg- 


ulation Act  1853,  16  &  17  Vict.  c.  70. 


414 


CHAP.  I.]  GUAEDIANS   IN    GENERAL.  §  294: 

interest  that  the  party  should  die  ;  "  but  this  rule  has  long 
been  disregarded  in  practice. ^  The  committee  manages  his 
ward's  estate,  much  the  same  as  other  guardians,  being  held 
to  a  strict  account  to  the  court  of  chancery,  and  to  the  Avard, 
if  he  recovers,  or  otherwise  to  his  personal  representatives 
after  his  death.  There  are  receivers  appointed,  with  a  salary, 
in  case  others  refuse  to  act ;  but  such  officer  is  considered  as 
a  committee,  and  gives  proper  security .^  Guardians  of  insane 
persons  are  appointed  in  this  country  ;  but  in  general  by  the 
courts  exercising  jurisdiction  in  case  of  minors,  which  derive 
also  their  autliority  from  local  statutes.^  The  civil  law  like- 
wise assigned  tutors  and  curators  to  such  persons.* 

Guardianship  for  spendthrifts  was  something  recognized  by 
the  civil  law.  Where  a  man,  by  notorious  prodigality,  was 
in  danger  of  wasting  his  estate,  he  was  looked  upon  as. non 
compos,  and  committed  to  the  care  of  curators  or  tutors  by 
the  prcctor.^  And  l)y  the  laws  of  Solon,  such  persons  were 
branded  with  perpetual  infamy.^  Such  guardianship  is,  how- 
ever, unknown  in  England,  and  Blackstone  considered  it  un- 
suitable to  the  genius  of  a  free  nationj  It  has  nevertheless 
been  introduced  into  several  of  the  United  States.^  Being  the 
creature  of  statute  law,  the  rights  and  powers  of  such  a  guar- 
dian, and  the  method  of  appointment  are  strictly  construed. 

§  294.  Guardians  of  Married  Women.  —  The  recent  statutes 
relating  to  married  women  in  this  country  have  rendered 
some  special  provisions  necessary  for  their  benefit.  While 
their  husbands  had  the  full  enjoyment  of  their  property,  no 
guardian  was  necessarj",  and  the  main  object  of  these  statutes 
seems  to  be  to  provide  a  suitable  trustee  of  the  estate,  in  case 
a  minor  or  insane  wife  is  abandoned  by  her  husband,  or  he  is 
likewise  mentally  unfitted  for  the  trust.  Such  statutes  are 
to  be  strictly  construed  as  in  derogation  of  the  common  law.^ 

1  Ex  parte  Cockayne,  7  Ves.  591.  «  i  b1.  Com.  306. 

2  1   Bl.    Com.   306.     See   Ex  parte  6  pf.  27,  10,  6,  16. 
Warren,  10  Ves.  622.  6  Potter  Antiq.  b.  1,  c.  26. 

3  See  U.  S.  Dig.  "  Idiots  and  Luna-  ^  1  Bl.  Com.  300. 

tics  ;  "  Shroyer  v.  Richmond,  16  Oliio  8  See  Mass.  Gen.  Sts.  c.  109,  §§  8,  9. 
St.  455;  Angell  v.  Probate  Court,  11  »  Smitli  Prob.  Pract.  87;  Schoul. 
E.  L  187.  Hus.  &  Wife,  Appendix. 

415 


§  296  THE   DOMESTIC    RELATIONS.  [PART   IV. 

§  295.  Special  Guardians  ;  Miscellaneous  Trusts.  —  Besides 
guardians  with  general  powers,  there  are  guardians  created 
by  hiw  for  special  purposes.  Such  are  guardians  under  the 
English  marriage  act,  appointed  for  giving  formal  consent  to 
the  marriage  of  a  minor,  and  guardians  to  release  dower  and 
homestead  rights  of  insane  married  women.  All  such  guar- 
dians derive  their  sole  authority  from  statutes,  and,  having 
jDcrformed  the  duty  prescribed,  they  have  no  further  concern 
with  the  ward.  Nor  do  they  act  except  in  default  of  a 
general  guardian.  There  are  also  public  officers  appointed 
for  charitable  purposes  on  behalf  of  the  State,  sometimes 
known  as  guardians  ;  such  as  guardians  of  the  poor ;  but, 
except  for  this  appellation,  they  have  no  connection  whatever 
with  our  sul'ject.i  Special  guardians,  too,  are  found  under 
some  statutes,  their  rights  and  duties  being  merely  tem- 
porary, pending  some  controversy  over  the  appointment  of 
a  general  guardian  ;  just  as  special  administrators  are  some- 
times appointed  in  a  case  of  emergency,  and  where  the 
appointment  of  the  general  administrator  is  necessarily  de- 
layed.2 

§  296.  Guardian  ad  Litem  and  Next  Friend.  —  Finally,  there 
is  the  guardian  ad  litem,  who  is  simply  a  guardian  for  a 
special  purpose  ;  being  one  chosen  to  represent  the  ward  in 
legal  proceedings  to  which  he  is  a  party  defendant.  Where 
the  ward  is  plaintiff  he  appears  by  next  friend.  In  either 
instance  the  father's  natural  right  is  respected.^  The  powers 
and  duties  of  guardians  ad  litem  are  similar  in  England  and 
the  United  States.^ 

1  See  Macphers.  Inf.  164;  Smith  Dillard,  50  Tex.  302.  And  see  In  re 
Prob.  Pract.  87.  Fortier,  31  La.  Ann.  50. 

2  Campau  v.  Shaw,  15  Mich.  226;  ^  ggg  Woolf  v.  Pemberton,  6  Ch. 
Swartwout    v.    Oaks,    52    Barb.    622;  D.  19. 

Brown  v.  Sneli,  57  N.  Y.  28G;  Bond  v.         *  Macphers.  Inf.  358;  2  Kent  Com. 

229.    See  Infants,  post. 

416 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  298 


CHAPTER  II. 

APPOINTMENT   OF   GUARDIANS. 

§  207.  Appointment  of  Guardians  over  Infants  in  general.  — 
Guardians  derive  their  authority  either  from  the  law  or  a 
special  appointment.  And  all  guardians  of  infants  specially 
appointed  must  be  appointed  by  the  infant's  parent ;  or  by 
the  infant  himself;  or  by  a  court  of  competent  jurisdiction. 

§  298.  Guardians  under  Authority  of  the  Law.  —  Guardians 
by  nature  and  nurture  act  under  authority  of  the  law  ;  which 
designates,  first,  the  father ;  and,  after  his  death,  the  mother. 
These  are  the  only  natural  guardians  possible.^  It  has  been 
said  that  tlie  infant's  next  of  kin  succeed  to  the  natural 
guardianship  when  both  parents  are  dead.^  Tliis  cannot  be 
correct  according  to  the  sense  of  the  term  as  used  at  this 
day.  The  mother  is  considered  the  natural  guardian  of  a 
bastard,  in  this  country,  as  against  its  putative  father;^ 
though  the  common  law  regarded  such  children  as  without 
a  natural  guardian.^  On  principle,  it  would  seem  that  the 
natural  guardianship  of  a  child  is  shifted  to  the  mother  when 
custody  is  awarded  her  because  of  her  husband's  personal 
unfitness.  And  the  modern  tendency  is  to  regard  both 
husband  and  wife  as  guardians,  by  nature,  of  their  own 
children.^ 

Socage  guardians  also  derived  their  authority  from  the  law, 
and  not  from  a  special  appointment.^ 

1  Co.  Litt.  88  b;  1  Bl.  Com.  461 ;  2  v.  Kline,  6  Barb.  366;  Dalton  i:  State, 
Kent  Com.    2-20 ;    Macpliers.   Inf.    .52 ;     6  Blackf.  357. 

Jarrett  v.  State,  5  Gill  &  Johns.  27  ;         *  Macphers.  Inf.  67 ;  supra,  §§  278, 

Eldridge    v.    Lippincott,    Coxe,    397 ;  279. 

Fields  v.  Law,  2  Root,  820!  6  ggg  supra,  §§  247,  248,  285 ;  People 

2  See  Reeve  Dom.  Rel.  315.  v.  Boiee,  39  Barb.  307. 

8  Wright  V.  Wright,  2  Mass.  109;  6  2  Kent  Com.  223;  see  supra, 
Hudson  V.  Hills,  8  N.  H.  417 ;  People    §§  286,  290. 

27  417 


§  299  THE   DOxMESTIC   RELATIONS.  [PART   IV. 

§  299.  Testamentary  Guardianship,  ho-w  constituted.  —  Testa- 
mentary guardianship  is  the  only  recognized  instance  of 
authority  derived  from  parental  appointment.  Guardians 
thus  appointed  require  no  further  qualification ;  not  even 
the  probate  of  the  will  which  appoints  them.^  But  testa- 
mentary guardianship  exists  in  this  country  chiefly  by  force 
of  local  statutes.  And  we  find  many  modifications  of  the 
English  rule  ;  none  more  important  than  those  of  several 
States  which  render  a  probate  of  the  will  necessary  before 
a  testamentary  guardian  can  act;  while  it  is  not  unfrequently 
found  that  the  appointment  remains  sul)ject  to  the  approval 
of  the  court,  and  requires  the  person  appointed  to  qualify 
with  or  without  sureties.^ 

The  parol  appointment  of  a  testamentary  guardian  is  in- 
sufficient.^ But  the  instrument^which  designates  him  need 
not  be  executed  with  the  same  formality  as  a  will ;  for  the 
father,  as  the  old  statute  intimates,  may  appoint  by  tes- 
tamentary deed.  It  has  been  held  that  the  appointment  of 
guardians  by  a  will  not  duly  attested  was  made  good  by 
a  codicil  dul}-  attested,  written  on  the  same  paper,  making 
certain  alterations  in  the  will,  and  confirming  it  in  other 
respects.^ 

It  is  sometimes  difficult  to  determine  what  language  will 
constitute  testamentar}-  guardianship.  The  statute  uses  the 
words  "  custody  and  tuition "  in  reference  to  the  children  ; 
and  such  assignment  of  the  children  as  confers,  expressly  or 
by  implication,  a  power  thus  extensive,  ought  to  suffice. 
Thus,  where  a  testator  gives  the  "care  and  custody"  of  his 
children,  further  directing  that  the  person  so  entrusted  shall 
be  guided  by  the  advice  of  his  executors,  as  to  the  children's 

1  Brigham  v.  Wheeler,  8  Met.  127 ;  lish  the  same.     In  re  Andrews,  L.  R.  8 

Hoyt's  Case,  2  Edw.    Ch.  113;   In  re  Q.  B.  153. 

Hart,  2  Con.  &  L.  375;  Lady  Chester's  -  Supra,  §§  287,  290;   Re  Taylor,  3 

Case,   Vent.   207.      See    7   Ves.   865 ;  Redf.  N.  Y.  259. 

Gilliat  V.  Gilliat,  3  Phillim.  222.     The  ^  Macphers.  Inf.  84.     See  Johnstone 

validity  of  the  testamentary  appoint-  v.  Beattie,  10  CI.  &  Fin.  42. 

ment  being  in  dispute,  a  court  of  com-  *  j)g  Bathe  v.  Lord  Fingal,  16  Ves. 

mon  law  over  a  question  of  custody  167.     But  see  Marshall,  C.  J.,  in  Gaines 

has  directed  an  issue  in  order  to  estab-  v.  Spann,   2  Brock.  81  ;  Wardwell  v. 

Wardwell,  9  Allen,  518. 

418 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  300 

education,  this  is  held  to  be  a  good  appointment.^  So  it  is 
held  that  testamentary  guardianship  was  constituted,  where  a 
testator  directed  the  trustees  of  his  will  to  procure  a  suitable 
house  for  the  residence  of  his  children,  who  were  infants,  and 
to  engage  a  proper  person  for  the  purpose  of  taking  the 
management  and  care  of  the  house  and  of  his  children  during 
their  minority  ;  and  requested  his  late  wife's  sister,  if  she 
should  be  alive  at  his  decease,  to  take  such  management  and 
care  on  herself.^  And  in  general  testamentary  guardians 
need  not  be  expressly  designated  as  such  ;  albeit,  in  order  to 
constitute  them  by  implication,  the  powers  essential  to  the 
office  must  be  conferred.^ 

The  devise  of  certain  property  "in  trust  "for  infants  is 
not  a  devise  of  guardianship.  Thus,  it  was  said  by  Lord 
Vaughan  that,  where  a  testator  devised  land  to  a  trustee,  to 
be  held  in  trust  for  his  heir,  and  for  his  maintenance  and 
education  until  he  should  be  of  age,  this  was  no  devise  of  the 
custody  within  the  statute,  for  he  might  have  done  this  be- 
fore the  statute.^  The  same  may  be  said  generally  of  legacies 
and  bequests  in  trust.^ 

§  300.  The  Same  Subject.  —  Testamentary  guardians,  to 
use  the  statute  expression,  may  be  appointed  "  either  in 
possession  or  remainder  ;  "  that  is,  successors  in  the  guardian- 
ship may  be  designated.  So  they  may  be  authorized  to  act 
during  the  full  term  of  the  infant's  minority  or  for  a  less 
period.  So  the  will  may  give  authority  to  the  surviving 
guardian  to  nominate  a  person  in  the  place  of  his  co-guardian 
who  has  died ;  although  it  appears  to  be  a  general  rule  that 
one  testamentary  guardian  cannot  appoint  another,  since  his 
office  is  personal,  and  not  assignable.^  In  other  words,  the 
testator  is  allowed  a  liberal  discretion  in  his  selection  and  in 
limiting  authority.     The  paper  which  creates  a  person  testa- 

1  See  Corrigan  v.  Kiernan,  1  Bradf.  325  ;  Johnstone  v.  Beattie,  10  CI.  & 
208.  Fin.  42  ;  Balch  v.  Smith,  12  N.  H.  437. 

2  Miller  v.  Harris,  14  Sim.  -540.    See  *  Bedell  v.  Constable,  Vaugh.  177. 
Mendes  v.  Mendes,  1  Ves.  89 ;   s.  c.  3          ^  Kevan  ?■.  Waller,  11  Leigh,  414; 
Atk.  619.  Dunham  v.  Hatcher,  31  Ala.  483. 

3  Gaines  v.  Spann,  2  Brock.  81 ;  «  Goods  of  Parneli,  L  R.  2  P.  &  D. 
Peyton  V.  Smith,  2  Dev.  &  Batt.  Eq.  379;  Macphers.  Inf.  82;  Vaugh.  177. 

419 


§  300  THE    DOMESTIC    RELATIONS.  [PART   IV. 

mentaiy  guardian  becomes  thus  the  test  of  bis  official  powers 
and  responsibibty.  Letters  of  gua7-diansbip  from  tbe  chan- 
cery or  probate  court  give  his  appointment  no  additional 
force,  unless  required  b\'  statute  In  fact  such  letters,  how- 
ever regarded  in  his  dealings  with  strangers,  are  as  a  rule 
issued  without  jurisdiction.^ 

In  a  late  New  York  case,  it  was  held,  on  appeal  from  the 
surrogate,  that  no  probate  guardian  could  be  appointed  after 
the  father's  decease,  where  the  father,  being  a  man  of  indi- 
gent circumstances,  had  surrendered  his  children  to  a  chari- 
table institution  by  an  instrument  in  writing,  executed  dur- 
ing his  lifetime,  and  not  long  before  his  death,  in  pres- 
ence of  two  witnesses,  which  purported  to  "  commit  and 
surrender "  the  children  to  the  said  institution  pursuant 
to  its  charter.  There  were  no  testamentary  expressions 
used,  nor  did  the  instrument  appear  to  have  been  executed 
in  contemplation  of  death.  The  decision  of  the  court  ap- 
pears to  rest  on  statutory  interpretation.^  In  general,  a 
firm  cannot  be  made  guardian  of  an  infant ;  nor  probably 
can  a  corporation ;  ^  though  financial  corporations  are  some- 
times chartered  at  this  day  with  express  power  to  assume 
fiduciary  trusts.* 

The  testator's  power  of  appointment  extends  to  all  his  law- 
ful children  surviving  at  his  decease,  being  still  minors  and 
unmarried.  Posthumous  children  are,  likewise,  included. 
And  the  testator's  appointment  of  his  wife  as  testament- 
ar}'  guardian  is  not  revoked  by  the  birth  of  such  issue,  subse- 
quent  to  the   execution   of  the    will  or  testamentary  deed 


1  Robinson   r.  Zollinger,  9    Watts,  that   the  wife   shall  be   testamentary 

169;    Morris  c.  Harris,    15    Cal.    226;  guanlianof  the  children,"  as  long  as  she 

Holmes  r.  Field,  12  111.  424 ;   Copp  v.  shall   remain  his  widow,"  her  author- 

Copp,   20  N.    H.  284.     See  Macphers.  ity   ceases  on    her  remarriage,   and  a 

Inf.  84,  86  ;  Stone  v.  Dorrett,  18  Tex.  new  appointment  becomes   necessary. 

700.     But   statutes   may  provide  that  Corrigan  y.  Kiernan,  1  Bradf.  Sur.  208 ; 

letters  of  guardianship  shall  issue  to  a  Holmes  v.  Field,  12  111.  424. 
testamentary  guardian  who  must  first  ^  l^eople  v.  Kearney,  31  Barb.  430. 

qualify.     Hence  a  non  resident  alien  is  s  gee  Macphers.  Inf.  109  ;  De  Mazar 

held  incapable  of  serving.     Re  Taylor,  r.  Pybus,  4  Ves.  644. 
3  Redf.   (N.   Y.)   259.     And  see  post,         *  Rice's   Case,  42    Mich.   528;    Re 

§  303.     If  the  testator's  will  prescribes  Cordova,  4  Redf.  66. 

420 


CHAP.  II.]  ArPOINTMENT   OF    GUARDIANS.  §  301 

appointing  her ;  tlie  analogy  of  distribution  of  his  property 
failing  to  affect  this  case.^ 

§  301.  Guardianship  by  Appointment  of  Infant;  Right  to 
nominate.  —  Guardiansliip  by  sole  appointment  of  the  infant 
cannot  now  be  said  to  exist.  But  at  the  common  law  there 
was  one  instance  where  it  arose ;  namely,  when  the  heir 
above  the  age  of  fourteen  chose  to  supersede  his  guardian  in 
socage,  by  one  of  his  own  choice,  under  a  deed  of  appoint- 
ment.2  Infants  have  still  the  privilege  of  nominating,  though 
not  appointing,  a  guardian  in  court,  after  arriving  at  this 
age  ;  and,  if  judicially  sanctioned,  their  choice  is  good.  In 
the  appointment  of  chancery  guardians,  the  custom  is  for  the 
court  to  approve  such  nomination  without  the  usual  reference 
to  a  master.3  But  this  is  not  an  invariable  rule.*  Testa- 
mentary guardians  cannot  be  superseded  in  this  way,  nor 
chancery  guardians.^  Statutes  giving  the  right  of  selecting 
probate  guardians  to  infants  above  fourteen  have  been  en- 
acted throughout  the  United  States  ;  but  the  extent  of  this 
privilege  is  not  uniformly  prescribed.^  Yet  the  ward  cannot 
set  aside  a  testamentary  or  chancery  guardian  in  this  coun- 
try ;  nor,  on  principle,  should  he  be  allowed  to  supersede  a 
probate  guardian  properly  appointed,  unless  authorized  to  do 
so  by  a  positive  statute.'  Having  once  exercised  his  right  of 
choice,  he  is  bound  by  the  appointment,  and  cannot  nominate 
again,  as  his  fancy  pleases.^     In  any  event,   the  court  must 

1  HoUingswortli's  Appeal,  51  Penn.  Cherry,  14  Ga.  594  ;  Artliurs'  Appeal, 
St.  518;  2  Bro.  C.  C.  538 ;  Macphers.  1  Grant,  55  ;  Sessions  !;.  Kell,  30  Miss. 
Inf.  87.  458 ;    Montgomery    v.  Sniitii,  3  Dana, 

2  Supra,  §§  286,  289  ;  Co.  Litt.  89  a.     599 ;  Palmer  v.  Oakley,  2  Doug.   433. 
^  Ex  parte.    Edwards,    3   Atk.  519;     The  minor's  choice  under  statute  can- 

Macphers.  Inf.  78,  109.  not   be   disapproved   at   tlie   arbitrary 

*  Ex  parte   Watkins,    2    Ves.  470 ;  discretion   of  the   judge  ;    but   if  one 

Curtis  V.  Rippon,  4  Madd.  4G2;  Coham  choice  be  injudicious,  tlie  minor  may 

V.  Coham,  13  Sim.  639.  choose  another,  and  upon  the  choice  of 

5  Palmer,  22;  Andrew,  313 ;  Matter  an  unobjectionable  person  the  minor 
of  Dyer,  5  Paige  Ch.  534  ;  Matter  of  has  a  right  to  have  him  appointed. 
NicoU,  1  Johns.  Ch,  25;  Matter  of  Rey-  Adams's  Appeal,  38  Conn.  304.  And 
nolds,  18    N.  Y.    Supr.   41.     Nor    the  see  ne.xt  c. 

mother,   as   natural    guardian.     Beard  "  Dyer's  Case,  5  Paige  Ch.  534. 

V.  Dean,  64  Ga.  258.  8  Lee's   Appeal,  27    Penn.   St.  229. 

6  See  Ham  v.  Ham,  15  Gratt.  74  ;  See  also  E.  B.  v.  E.  C.  B.,28  Barb.  299. 
Dibble  v.  Dibble,  8  Ind.  307  ;  Pitts  v.  But  see  Adams's  Appeal,  36  Conn.  304, 

421 


§  303  THE   DOMESTIC   RELATIONS.  [PART   IV. 

sanction  the  infant's  selection,  and  issue  letters  before  the 
guardian  can  act ;  so  that  this  is  guardianship  by  appointment 
rather  of  the  court  than  of  the  infant,  but  not  of  course  by 
judicial  appointment  at  arbitrary  discretion. 

§  302.  Chancery  and  Probate  Guardians  are  Judicially  Ap- 
pointed. —  Chancery  and  probate  guardians,  subject  to  the 
above  qualification,  are  created  in  strictness  by  the  special  ap- 
pointment of  a  court  exercising  competent  jurisdiction.  And 
in  discussing  this  siAject  of  judicial  appointment  we  shall 
consider,  firat^  the  tribunal  which  appoints ;  second^  the  per- 
sons properly  appointed  ;  thirds  the  method  of  appointment ; 
and  fourth,  the  effect  of  the  appointment. 

§  303.  The  Same  Subject  ;  Jurisdiction ;  how  obtained.  —  As 
to  the  first  point,  it  may  be  premised  that  in  England  all  guar- 
dians are  appointed  by  the  Court  of  Chancery  in  the  exercise 
of  inferior  or  appellate  powers.  Chancery  guardians  have 
been  aj^pointed  in  this  country,  but  not  frequently  ;  and 
county  courts  of  probate  jurisdiction  at  the  present  day  gen- 
erally act  in  the  first  instance,  issuing  letters  of  guardianship, 
as  well  as  of  administration,  under  their  official  seal.  Thus, 
in  New  England  and  most  of  the  Western  States,  probate 
guardians  are  appointed  by  the  judge  of  probate;  in  New 
York,  by  the  surrogate  ;  in  New  Jersey  by  the  orphans'  court 
or  the  ordinary ;  in  Pennsylvania  and  Maryland  by  the  or- 
phans' court ;  in  Ohio,  by  the  Court  of  Common  Pleas  with 
chancery  powers  ;  in  California,  by  the  district  courts  possess- 
ing a  similar  jurisdiction.  In  Virginia,  North  and  South 
Carolina,  the  chancery  and  county  courts  have  exercised  a 
sort  of  concurrent  jurisdiction  ;  in  others  of  the  Southern 
States  there  are  orphans'  courts ;  in  Louisiana  the  civil  law 
has  prevailed.^ 

Two  important  elements  enter  into  this  jurisdiction  over 
the  ward,  —  possession  of  property  and  actual  residence  within 


showing    that  local   statutes   vary  on  Duke  v.  State,  57  Miss.  220.     For  rules 

tliis  point.  which  prevailed  in  California  wliile  un- 

^  See   2    Kent  Com.   226,  227,   and  der  Mexican  rule,  and    the  powers  of 

notes  ;    Glascott   v.    Warner,    20    Wis.  alcades  over  guardianship,  see  Braly  v. 

654 ;  Herring  v.  Goodson,  43  Miss.  31)2  Keese,  51  Cal.  447. 

422 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  303 

the  judicial  limits.  Property  in  the  infant  has  usually  been 
deemed  essential  in  chancery  practice.^  But  in  a  case  which 
came  before  Lord  Chancellor  Cottenham,  in  1847,  it  was  held 
that  the  court  should  interfere  on  behalf  of  infants  without 
property,  so  as  to  award  custody  of  the  person.  "  I  have  no 
doubt  about  the  jurisdiction,"  was  his  emphatic  language.^ 
What  may  be  called  guardians  of  the  person  and  estate  in 
chancery  are  still  appointed,  however,  on  the  allegation  of 
property.  In  the  United  States,  letters  issue  to  probate  guar- 
dians, whenever  there  is  occasion  for  their  appointment,  the 
statute  rarely  prescribing  narrower  limits  to  the  judge's  au- 
thority ;  and,  as  our  practice  is  simple  and  attended  with  little 
expense,  the  same  necessity  for  inquiry  into  the  means  of  the 
infant  does  not  manifestly  arise  as  in  the  case  of  chancery 
guardianship.  But  statute  and  practice  generally  have  ref- 
erence to  cases  of  propert}'.^ 

Where  the  ward  is  a  non-resident,  guardianship  is  frequently 
recognized  for  the  collection  and  preservation  of  his  estate  in 
the  jurisdiction ;  and  in  such  cases  the  court  where  the  prop- 
erty is  situated,  upon  due  notice,  appoints  some  friend  of  the 
minor  on  his  behalf,  requiring  proper  security ;  the  existence 
and  situs  of  the  property  determining  the  right  of  juris- 
diction.^ 

Far  more  important  is  the  requirement  of  an  actual  resi- 
dence within  the  jurisdiction  ;  especially  in  States  where  the 
authority  of  courts  with  23robate  jurisdiction  is  strictly  limited 
to  their  respective  counties.  Letters  of  guardianship  in  the 
case  of  a  resident  person  obtained  in  the  wrong  county  are 
null  and  void,  and  may  be  collaterally  imj^eached  in  any 
court.^     Where  the  courts  of  two  or  more  counties  have  con- 

1  See  Macphers.  Inf.  103 ;  si</)ra,  §  288.  property.      Maxwell   v.    Campbell,   45 

2  In  re  Spence,  2  Pli.  247.  Ind.  360 ;  Seaverns  v.  Gerke,  3  Sawyer, 

3  People  V.  Kearney,  31  Barb.  430.  353. 

4  Clarke  v.  Cordis,  4  Allen,  466;  ^  Ware  ?;.  Coleman,  6  J.  J.  Marsh. 
Rice's  Case,  42  Mich.  528.  See  Hope  !-•.  198;  Sears  ^^  Terry,  26  Conn.  273; 
Hope,  27  E.  L.  &  Eq.  249;  He  Hors-  Dorman  v.  Ogbourne,  16  Ala.  759; 
ford,  2  Redf.  168.  This  jurisdiction  is  Miinson  v.  Munson,  9  Tex.  109;  Lacy 
often  conferred  by  statute  as  to  pex'-  i:  Williams,  27  Mo.  280 ;  Herring  v. 
sonal  property.  lb.  So,  too,  as  to  real  Goodson,  43  Miss.  392;  Duke  v.  State, 
property,  or  to  either  real  or  personal  57  Miss.  229. 

423 


§  303  THE   DOMESTIC   RELATIONS.  [PART   IV. 

current  jurisdiction,  as  if  a  non-resident  iias  property  lying 
in  different  places,  the  general  principle  is  that  the  court 
where  proceedings  are  first  commenced  retains  jurisdiction. 
And  letters  once  properly  issued  are  not  revoked  by  the 
ward's  removal  to  another  county  within  the  same  general 
jurisdiction.  Where  a  new  appointment  becomes  necessary, 
next  to  the  inquiry  whether  the  party  is  a  minor  or  otherwise 
legally  subject  to  guardianship  at  all,  is  the  determination  of 
his  actual  residence.  But,  as  just  observed,  property  maj'- 
give  jurisdiction  in  some  cases  where  the  ward  resides  abroad. 
Nor  does  non-jurisdiction  make  everjthing  void  to  the  ex- 
tent of  relieving  one  from  liability  who  has  acted  as  guardian 
and  received  property  in  that  capacity,  since  one  may  be  a 
yU  quasi  guardian,  and  be  estopped  by  his  own  acts.^ 
.^,A  ^yThe  infant's  place  of  residence  at  the  time  when  a  guar- 
,aian  is  to  be  appointed  determines  the  jurisdiction  of  the 
court.  Hence,  the  county  court  which  appointed  the  first 
guardian  of  a  ward  may  not  always  appoint  his  successor.^ 
And  statute  jurisdiction  is  taken  where  minor  orphans  are  in 
fact  resident  in  a  State  at  the  time,  even  if  the  legal  domicile 
be  elsewhere  ;  the  appointment  giving  at  all  events  an  author- 
ity to  be  recognized  within  such  State.^ 

The  Court  of  Chancery  exercises  a  large  discretion.  Its 
authority  over  the  persons  and  estates  of  infants,  idiots,  and 
lunatics  cannot  be  questioned  elsewhere.  No  tribunal  short 
of  the  legislature  can  interpose  a  check  upon  its  powers.  But 
it  is  different  with  probate  courts.  Their  jurisdiction  is 
founded  upon  local  statutes,  maintained  in  derogation  of  the 
common  law,  made  subject  to  supervision  of  supreme  tribu- 
nals, and  confined  to  the  exercise  of  special  powers  sparingly 
conferred.  From  the  fact  that  the  English  equity  courts  are 
unfettered  in  their  authority,  chancery  courts  in  this  country 
incline  to  the  same  direction  ;  hence,  they  construe  strictly 
the  powers  of  the  probate  courts,   while  maintaining  their 

1  McClure    v.    Commonwealth,   80  514;  Re  Hubbard,  82  N.  Y.  90.     See 

Penn.  St.  167;  post.  Part  IV.  as  to  domicile,  suprn,  §  2-30  ,  post,  c.  5. 

^  Harding  v.  Weld,  128  Mass.  587;  Questions    of    conflicting    jurisdiction 

Brown  v.  Lynch,  2  Bradf.  214.  will  be  considered,  c  4,  post. 

3  Ross  V.  Southwestern  R.,  53  Ga. 

424 


CHAP.  II.]  APPOINTMENT  OF   GUAKDIANS.  §  304 

own  ;  a  matter  of  little  difficulty,  since  the  supreme  authority 
is  in  their  hands,  whether  in  matters  of  probate,  e(j[uity,  or 
common  law.  With  especial  strictness  are  the  powers  of  pro- 
bate tribunals  scrutinized  in  matters  which  do  not  grow  out 
of  the  settlement  of  estates  of  deceased  persons.^ 

It  may  devolve  on  chancery  to  appoint  guardians  where 
testamentary  guardians  decline  or  are  disqualified  to  act.  So 
where  there  are  two  or  more  testamentary  guardians  and 
they  fail  to  agree. ^  And  it  is  the  English  rule  that  testa- 
mentary guardianship  does  not  go  over  upon  the  guardian's 
death,  no  successor  having  been  indicated  in  the  will  ;  but 
chancery  must  supply'  the  vacancy.^  The  same  may  be  said 
of  the  courts  in  this  country  with  probate  jurisdiction.^ 

It  would  appear  to  be  the  general  rule  in  this  country,  that 
a  probate  or  statute  guardian  cannot  be  appointed  for  a  minor 
where  the  minor  is  not  Avithin  the  jurisdiction  or  domiciled 
there,  and  has  no  property  therein  ;  and  moreover,  that  bring- 
ing an  infant  into  the  State  by  stratagem  for  the  purpose  of 
giving  a  colorable  jurisdiction  will  not  avail.^ 

There  may  be  jurisdiction  under  statutes  to  appoint  a 
guardian  both  on  the  grounds  of  infancy  and  insanity.^ 

§  304.  Selection  of  Chancery  or  Probate  Guardian.  —  Second. 
In  selecting  the  proper  person  as  guardian,  the  judge  is 
allowed  to  exercise  a  liberal  discretion,  and  his  decision  will 
not  be  disturbed  on  appeal  except  for  good  and  sufficient 
cause.  Such  is  the  rule  both  in  England  and  America."  But 
this  discretion  is  not  an  arbitrary  one  ;  it  must  be  exercised 
in  conformity  with  certain  fixed  principles.  And  if  the  judge 
appoint  without  giving  reasonable  notice,  so  that  parties  in- 

^  See,  for  instance,  as  to  insane  per-  430 ;  Judge  of  Probate  v.  Hinds,  4  N.  H. 

sons  and  spendthrifts,  Ilolden  v.  Scan-  4(J4. 

lin,   30   Vt.    177:    Sears   v.    Terry,   26  5  /J^  Hubbard,  82  N.  Y.  90. 

Conn.  273 ;  Strong  v.  Birchard,  5  Conn.  «  King  v.  Bell,  3G  Ohio  St.  4G0.    The 

357;  Cooper  y.  Summers,  1  Snced,  4o3",  status  of  an  Indian  tribe  does  not  in- 

Hovey  v.   Harmon,  49  Me.   269.     And  validate   jurisdiction    in    appointing  a 

see,  as  to  minors,  Re  Hosford,  2   Redf.  guardian.      Farrington   v.    Wilson,   29 

168.  Wis.  383. 

2  Macphers.  Inf.  113;  ib.  104.  "  Kaye's  Case,   L.  R.    1    Ch.   387; 

3  Bac.  Abr.  Guardian  and  Ward,  A.  Battle  c.  Vick,  4  Dev.  294 ;  White  v. 
*  See  People  v.  Kearney,  31  Barb.  Pomeroy,  7  Barb.  640 ;  Nelson  v.  Green, 

22  Ark.  367. 

425 


§  304  THE  DOMESTIC   RELATIONS.  [PART   IV. 

terested  have  not  a  fair  opportunity  to  be  heard  upon  the 
petition,  his  appointment  may  be  set  aside  on  appeal. ^ 

WJiere  the  father  of  an  infant  is  living,  courts  have  ever 
been  unwilling  to  assume  jurisdiction.  Chancery,  according 
to  the  old  rule,  as  we  understand  Blackstone  to  mean,^  could 
not  appoint  a  guardian  except  for  fatherless  children.  But 
the  correctness  of  this  principle  was  afterwards  doubted  ;  and 
when  the  rule  became  settled,  in  Lord  Thurlow's  time,  that 
the  father  could  not  give  a  valid  receipt  for  his  child's  legacy, 
the  necessity  of  appointing  a  guardian  to  collect  and  hold 
personal  property  was  apparent.^  And  since  the  substitution 
of  chancery  and  probate  wards  in  practice  for  socage  wards, 
guardianship  of  the  minor  in  the  father's  lifetime  has  fre- 
quently been  sought  in  the  courts.* 

But  the  English  chancery  reluctantl}^  interferes  with  the 
father's  rights  in  such  cases.  Lord  Chancellor  Hart  in  1828 
refused  to  bestow  the  chancery  guardianship  of  a  minor  upon 
a  third  person,  on  the  ground  that  the  father  is  guardian  of 
his  own  children  by  paramount  title  and  common  right.  And 
while  he  admitted  that  the  court  should  in  all  cases  assume 
the  superintendence  of  the  child's  fortunes,  he  added,  that 
during  the  father's  life  no  other  could  be  placed  over  the 
child,  except  under  very  peculiar  circumstances,  and  even 
then  rather  as  a  curator  than  a  guardian.^  And  the  later 
decisions  are  to  the  same  effect ;  as,  for  instance,  Fynns  Case^ 
where  Vice-Chancellor  Bruce  refused  to  make  the  mother  a 
chancery  guardian  of  her  children  against  the  father's  wishes, 
though  satisfied  that  the  latter  was  unable  to  maintain  them, 
and  was  such  a  person  as  would  not  have  been  selected  for 
the  guardianship  of  another  person's  children.^ 

The  great  dif&culty  which  arises  in  the  English  chancery 

1  Underbill  i'.  Dennis,  9  Paige,  202  ;  96  ;  Dagley  v.  Tolferry,  1  P.  Wms.  285; 
Bowles  ?;.  Dixon,  32  Ark.  92.  A  ma-  2  Kent  Com.  220,  and  cases  cited; 
ternal  grandparent  ought  not  to  be  ap-     Lang  v.  Pettus,  11  Ala.  37. 

pointed  without  notice  to  the  paternal  *  SeeEx  parte  Bond,  8  L.  J.  252,  Ch. 

grandparent,  if  there  be  one.     lie  Feel-  ^  Barry  v.  Barry,  1  Moll.  210. 

ey.  4  Kedf.  306.  6  12  Jur.  713.      And   see  Spence'3 

2  3  Bl.  Com.  427.  Case,  2  Ph.  247  ;  Ball  v.  Bull,  2  Sim. 
8  Cooper  V.  Thornton,  3  Bro.  C.  C.  35. 

426 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  305 

practice,  where  guardianship  is  sought  by  a  stranger,  namely, 
that  a  fatlier's  custody  of  his  own  children  is  thereby  dis- 
turbed, has  been  frequently  obviated  in  this  country  by  stat- 
ute. And  in  many  States,  while  the  father  is  living,  probate 
guardians  are  appointed,  whose  powers,  being  limited  to  the 
infant's  estate,  do  not  come  in  conflict  with  the  parental  right 
to  the  ward's  person.^  Yet  in  other  States  the  probate  courts 
can  only  grant  guardianship  to  orphans,  that  is,  to  fatherless 
children  ;2  and  where  this  is  the  case,  chancery  might  assume 
jurisdiction  in  an  extreme  case,  though  the  father  were  living. 
A  father  who  is  alive  is  not  bound  usually  by  proceedings  for 
the  guardianship  of  his  child,  to  which  he  was  not  a  party .^ 

§  305.  Selection  of  Chancery  and  Probate  Guardians  ;  Subject 
continued. —  Most  frequently  the  court's  discretion  is  to  be 
exercised,  whether  in  chancery  or  probate  appointments,  in 
cases  where  the  child  is  fatherless,  and  moreover  too  young  to 
nominate  for  himself.  Who,  then,  shall  be  selected?  The 
mother,  if  living  and  competent  for  the  trust,  would  appear 
to  be  the  most  suitable  person,  unless  remarried,  and  so  in  fact 
is  she  considered  in  this  country.  But  in  English  chancery 
practice  it  is  said  that  no  great  inaportance  is  attached  to  her 
rights  ;  while  undoubtedly  she  and  the  next  of  kin  have  to- 
gether the  first  claim.*  And  it  is  improper  to  appoint  the  mother 
withoutsome  information  as  to  the  father's  family.^  On  the  other 
hand  the  court  refuses  to  select  guardians  for  infants  residing 
with  their  mother  until  she  has  indicated  her  own  wishes.^ 

In  this  country,  probate  guardians  of  fatherless  children 
are  appointed  with  more  exclusive  reference  to  the  mother's 
choice,  and  the  next  of  kin  are  less  favorably  regarded.  And 
it  is  not  uncommon  to  find  guiding  principles  indicated  by 
statute  for  all  cases.  The  Ameiican  rule  is  clearly  stated  in  a 
recent  New  Jersey  case :  namely,  that  the  mother,  and,  after 
the  mother,  the  next  of  kin  of  an  infant  under  fourteen  is  en- 

1  Mass.  Gen.  Sts.  c.  109,  §  4  ;  Clark         *  Marphers.  Inf.  112. 

V.  Montgomery,  23  Barb.  464.  6  Cooke's  Case,  6  E.  L.  &  Eq.  47. 

2  Poston  V.  Young,  7  J.  J.  Marsh.  ^  Lockwood  i\  Fenton,  17  E.  L.  & 
501 ;  Hall  v.  Lay,  2  Ala.  520.  Eq.  90 ;  In  re  Thomas,  21  E.  L.  &  Eq. 

3  Bowles  ?;.  Dixon,. 32  Ark.  92;  Tong  524.  As  to  otiier  relatives,  see  Mac- 
V.  Marvin,  26  Mich.  35.  pliers.  Inf.  112. 

427 


§  305  THE   DOMESTIC   RELATIONS.  [PAKT   IV. 

titled  to  preference,  and  that  such  claim  cannot  be  disregarded 
unless  for  some  satisfactory  reason.^ 

It  is  further  stated,  in  this  case,  that  a  greater  latitude  is 
allowed  to  the  court,  as  between  relatives  having  no  legal 
claim  to  the  services  of  the  child  and  the  natural  guardian  ; 
and  reasons  which  might  be  deemed  insufficient  to  bar  the 
mother's  rights  might  decide  as  between  other  relations.^ 

The  leading  consideration  for  the  court  should  be  the  inter- 
est and  welfare  of  the  child  ;  and  this,  which  becomes  almost 
the  only  rule  of  choice  between  distant  kindred,  may  control 
even  the  selection  of  the  father  himself.^  Hence,  in  a  case 
where  children  had  been  left  with  their  grandparents  for  many 
years  with  the  consent  of  the  father,  who  was  a  widower  and 
a  seafaring  man,  guardianship  was  refused  to  their  uncle, 
though  he  had  been  designated  by  the  father  on  his  death- 
bed.* If  the  child  is  fatherless,  and  the  mother's  manner  of 
life  would  be  likely  to  exercise  an  unfavorable  influence,  she 
will  not  be  appointed,  nor  will  her  wishes  have  much  weight.^ 
Nor  is  the  ai)pointment  of  an  executor  or  administrator  desir- 
able, if  a  conflict  of  interests  is  thereby  created.^  Nor  the 
selection  of  a  stranger,  when  the  next  of  kin  can  be  had, 
unless  the  parent  expressly  desires  it.'^  Nor  of  one  who  holds 
adverse  religious  opinions,  though  there  is  at  this  day  far  more 
toleration  than  formerly  on  this  point,  and  perhaps  more  in 
the  United  States  than  in  Great  Britain.^     And  the  objection 

1  Albert  v.  Perry,  1  McCart.  540.  Badenhoof  v.  Johnson,  11  Nev.  87 ; 
And  see  Kead  v.  Drake,  1  Green  Ch.    Janes  v.  Cleghorn,  63  Ga.  335. 

78 ;  Allen  v.  Feete,  25  Miss.  29  ;  People  *  Foster  v.  Mott,  3  Bradf.  409. 

V.  Wilcox,  22   Barb.   178  ;    Ramsay  v.  ^  Albert  v.  Perry,  1  McCart.  540. 

Ramsay,  20  Wis.  507  ;  Good  v.  Good,  6  Crutchtield's   Case,  3   Yerg.  336 ; 

52  Tex.  1 ;  Leavel  v.   Bettis,  3  Bush,  Isaacs  v.  Taylor,  3  Dana,  600  ;  Massin- 

74;  Lord  ('.  Hougii,  37  Cal  657.    There  gale  v.  Tate,  4  Hayw.  30;  Parker  v. 

may  be  a  probate  guardian  appointed  Lincoln,  12  Mass.  17. 

over  a  child   against  the  wishes  of   a  "^  See  Sullivan's  Case,  1  Moll.  225; 

man  and  wife  wiio  liave  agreed  in  writ-  Morehouse  v.  Cooke,  Hopk.  226 ;  Lady 

ing  with  the  mother  to  take  care  of  the  Tcynham  r.  l.ennard,  cited  2  Atk.  315; 

child  under  certain  stipulations.    Glou-  Spaun  v.  Collins,  10  S.  &  M.  624. 

cester  v.  Page,  105  Mass.  231.  »  Underliill  v.  Dennis,  9  Paige,  202 ; 

2  Albert  r.  Perry,  1  McCart.  540.  Macphers.  Inf.  113;  Ex  parte  Whitfield, 
»  Bennett  v.  Byrne,  2  Barb.  Ch.  216  ;  2  Atk.  315  ;  Voullaire  v.  VouUaire,  45 

Compton  V.  Compton,  2  Gill,  241 ;  Sue-    Mo.  602. 
cession   of  Fuqua,   27  La.  Aua.  271 ; 

428 


CHAP.  II.]  APPOINTMENT    OF    GUARDIANS.  §  305 

that  a  particular  appointment  will  subject  the  ward's  estate  to 
extraordinary  expense  ought  to  be  considered. ^  In  general, 
it  is  the  duty  of  the  court  to  regard  the  general  character  of 
the  person  who  applies  for  letters  of  guardianship  ;  tlie  influ- 
ence he  is  likely  to  exert,  and,  if  the  estate  be  difficult  to 
manage,  his  business  qualifications. 

On  the  other  hand,  no  fanciful  reasons  should  be  allowed  to 
determine  the  selection  of  the  court  between  distant  relations. 
The  circumstance  that  the  infant  inherited  the  principal  part 
of  his  pro[)erty  through  one  line  of  the  family  is  not  to  pre- 
judice his  next  of  kin  in  the  other.^  But  the  fact  that  he  has 
always  been  in  the  charge  of  his  relatives  on  one  side  is 
entitled  to  weight.^  If  children  are  already  in  a  good  home, 
this  is  a  reason  why  they  should  not  be  disturbed.  But  the 
mother's  consent  to  relinquish  them  to  a  certain  relative  is  of 
little  avail,  for  it  might  have  been  extorted  from  her  under 
pressure  of  poverty.*  Although  the  prudent  choice  of  a 
minor  arrived  at  fourteen  may  be  almost  conclusive,  as  we 
have  already  seen,  yet  it  would  seem  that  while  under  that 
age  his  preferences  are  entitled  to  no  consideration.  The 
separation  of  young  children  from  one  another  is  to  be 
avoided,  unless  in  other  respects  quite  desirable.^ 

The  father's  testament  constitutes  a  guardian  ;  but  when 
the  appointment  is  too  informal  to  take  effect  under  the 
statute,  as  constituting  testamentary  guardianship,  a  chan- 
cer}'-  or  probate  guardian  must  be  appointed.  In  such  case, 
the  choice  thus  informally  indicated  carries  great  Aveight 
with  the  court.^  And  on  general  principle  the  death-bed 
wishes  of  the  father  are  considered  by  the  court ;  so 
those  of  the  mother,  in  States  where  the  mother's  choice 
is   favored    at  all.'''     Such   wishes   are    not  conclusive   upon 

1  Bennett  v.  Byrne,  2  Barb.  Ch.  216.  ^  Knott  v.  Cottee,  2  Ph.  102  ;  Kaye's 

2  UnderliiU  v.  Dennis,  9  Paige,  202;  Case,  L.  R.  1  Ch.  387  ;  Lady  Teynliam 
Albert  v.  Perry,  1  McCart.  540.  v.  Lennard,  4  Bro.  P.  C.  302;  s.  c.  cited 

3  Albert  v.  Perry,  1  McCart.  540.  2  Atk.  315 ;  Bennett  v.  Byrne,  2  Barb 
*  Ih.  Cii.  216;  Cozine  v.  Ilornc,  1  Bradf, 
s  Marcellin,  Matter  of,  4  Redf.  299.  143;  Watson  v.  Warnock,  .31  Ga.  716 
B  Hall    V.    Storer,   1   Yo.  &  C.  556;  In   re   Turner,    4   C.    E.    Green,   433 

Marcellin,  Matter  of,  31  N.  Y.  Supr.     Badenlioof  t;.  Johnson,  llNev.  87. 
207. 

429 


§  306  THE   DOMESTIC   RELATIONS.  [PART   IV. 

the  court ;  and  yet  they  may  sometimes  be  sufficient  to  turn 
the  scales.^ 

§  306.  Same  Subject ;  Appointment  of  Married  Woman  ;  of 
Non-Resident,  &c. —  As  concerns  the  right  of  a  married  woman 
to  be  appointed  guardian,  there  is  doubt  and  uncertainty. 
The  dicta  are  apt  to  go  one  way  and  the  decisions  another  ; 
doubtless  out  of  judicial  deference  to  the  sex.  Some  hold 
that  married  women  are  at  common  law  capable  of  becoming 
guardians  ;  ])ut  they  draw  their  conclusions  rather  from  the 
analogies  of  administration,  than  from  positive  authority  in 
their  favor.  When  it  is  considered  that  chancery  and  probate 
guardians  are  a  modern  creation,  the  ancient  cases,  from  such 
species  of  guardianship  as  are  now  extinct,  are  hardly  worth 
looking  after.  It  is  true  there  are  several  cases  which  sustain 
the  acts  of  married  women  while  acting  as  guardians,  or  rather 
quasi  guardians;  at  the  same  time  clear  precedents  for  their 
actual  appointment  are  wanting.^  It  is  lately  held  in  the 
English  chancery  court,  that,  while  a  married  woman  may  be 
co-guardian  with  a  man,  her  sole  appointment  is  improper.^ 
In  spite  of  the  liberal  tendency  of  the  age,  we  conclude  that 
while  such  guardianship  would  not  be  deemed  absolutely  void, 
and  is  in  fact  sometimes  sanctioned  without  investigation,  pub- 
lic policy  is  decidedly  against  the  appointment.  Not  the  least 
important  objection  is  the  inability  of  married  women  to  fur- 
nish proper  recognizance  and  to  manage  trust  property,  with- 
out constantly  encountering  legal  obstacles,^  all  the  more 
troublesome  from  the  present  uncertainty  of  the  law  of  hus- 
band and  wife.  Hence,  the  English  rule  has  been,  on  the 
marriage  of  a  female  guardian,  to  choose  another  in  her  stead, 


1  As  to  appointing  a  firm  or  a  cor-  Gornall's  Case,  1  Beav.  347.  See  fur- 
poration,  see  supra,  §  300 ;  Re  Cor-  ther,  Jarrett  v.  State,  5  Gill  &  Johns, 
dova,  4  Redf.  66.  27  ;  Palmer  v.  Oakley,  2  Doug.  433 ; 

2  Wallis  V.  Campbell,  13  Ves.  517.  Farrer  r'.  Clark,  29  Miss.  19.5  ;  Ilolley  «. 
This  was  the  case  of  an  illegitimate  Chamberlain,  1  Redf.  3-33 ;  Kettletas  u. 
child.  As  cited  in  Macphers.  Inf.  HI,  Gardner,  1  Paige,  488;  Ex  parte  Max- 
it  might  be  considered  authority  for  well,  19  Ind.  88.  Recent  statutes  in 
the  appointment  of  married  women  as  States  now  empower  a  married  woman 
guardians.  to  serve  as  guardian.     Schoul.  Hus.  & 

3  In  re  Kaye,  L.  R.  1  Ch.  387.  See  Wife,  appendix.  And  see  Beard  v. 
Macphers.  Inf.  Ill ;  Anon.,  8  Sim.  346 ;  Dean,  64  Ga.  248. 

430 


CHAP.  II.]  APPOINTMENT    OP    GUARDIANS.  §  307 

on  the  ground  that  she  is  no  longer  suijurh,  and  has  become 
liable  to  the  control  of  her  husband;  wliile  she  is  said  to  be 
still  at  liberty  to  go  before  the  master  to  propose  herself  as 
her  own  successor. 

Persons  residing  out  of  the  jurisdiction  will  not  usually  be 
appointed  guardians,  although  one  who  was  out  of  the  State 
might  yet  control  from  a  distance  ;  for,  it  is  said,  there  must 
be  some  one  answerable  to  the  court.^  But  if  the  sureties 
on  the  guardian's  bond  reside  within  the  jurisdiction  and  are 
pecuniarily  responsible,  is  not  some  one  answerable  to  the 
court  ?  And  might  he  not  have  an  attorney  witliin  the  juris- 
diction answerable  for  process,  under  statute  ?  The  eases, 
however,  are  rare  where  such  an  appointment  would  be 
advantageous  to  the  ward  for  business  reasons  ;  and  hence, 
others  are  usually  chosen,  both  in  chancery  and  probate.  In 
some  of  the  United  States,  the  appointment  of  non-residents 
is  prohibited  by  statute  ;  and  even  without  such  prohibition 
the  court  is  justified  in  withholding  letters  of  guardianship 
at  discretion,  where  the  petitioner  is  bej^ond  the  reach  of 
State  process.2  But  the  person  selected  need  not  reside 
■within  the  jurisdiction  of  the  county  court  making  the  ap- 
pointment. Where  infants  are  domiciled  abroad,  some  one 
at  home  will  be  appointed,  if  a  guardian  is  required,  even 
though  the  father  wishes  it  otherwise.^  Exceptions  to  this 
rule  have  been  made  in  strong  cases,  and  a  non-resident 
guardian  appointed.'^ 

A  certain  appointment  may  be  objectionable  because  of 
property  interests  adverse  to  those  of  the  minor.  Stat- 
utes sometimes  interpose ;  as,  for  instance,  in  rendering  in- 
eligible the  administratrix  of  an  estate  in  which  the  minor 
is  interested.^ 

§  307.  Method  of  appointing  Guardian;  Procedure. — Third. 
The  usual  practice  in  chancery  is  for  the  court,  as  soon  as  the 

1  Logan  V.  Fairlee,  Jacob,  193.  *  Daniel  v.  Newton,  8  Beav.  485; 

2  Finney  v  State,  9  Mo.  227.  There  In  re  Tliomas,  21  E.  L.  &  Eq.  524.  A 
is  no  sneh  prohibition  in  Maine.  Berry  non-resident  alien  may  be  precluded. 
V.  Johnson,  53  Me.  401.  Re  Taylor,  o  Redf.  (N.  Y.)  259. 

3  Stephens  v.  James,  1  M.  &  K,  627  ;  &  Scobey  v.  Gano,  35  Ohio  St.  550 ; 
Lethem  v.  Hall,  7  Sim.  141.  Supra,  §  305. 

431 


§  307  THE   DOMESTIC   RELATIONS.  [PAET  IV. 

petition  is  presented,  to  make  an  order  for  a  reference  to  a 
master  to  approve  of  a  proper  person  for  the  guardianship. 
For  tliis  purpose,  the  master  is  attended  by  all  proper  parties  ; 
and,  after  a  full  hearing,  he  makes  his  report,  in  which  he 
mentions  the  infant's  age  and  fortune,  the  evidence  and  legal 
grounds  on  which  his  approval  of  the  guardian  is  based,  and 
the  maintenance  proper  for  the  child.  The  Vice-Chancellor  con- 
firms or  varies  the  report  at  his  discretion,  and  then  makes  the 
appointment.    From  his  decision  appeal  lies  to  the  full  court.^ 

The  guardian  thus  appointed,  if  guardian  of  the  person  and 
estate,  is  required  to  enter  into  a  recognizance,  with  sufficient 
sureties,  to  account  regularly  or  wlienever  called  upon  by  the 
court.  But,  according  to  the  modern  English  practice,  guar- 
dians of  the  person  and  not  of  the  estate  are  exempted  from 
this  requirement.^ 

In  some  cases,  guardians  are  appointed  by  the  court  with- 
out reference  to  a  master.  Thus,  where  the  father  applies, 
or  the  infant  above  fourteen  makes  a  selection,  the  court 
acts  without  reference,  out  of  regard  for  their  special  priv- 
ilege.^ And  where  the  property  of  the  infant  is  very  small, 
the  same  favor  has  been  wanted,  in  order  to  save  legal  ex- 
pense to  the  estate.*  The  child  should  usually  be  present  at 
the  hearing ;  but,  in  a  recent  Irish  case,  the  court  dispensed 
with  the  requirement,  on  evidence  that  the  child  was  less 
than  a  month  old  and  of  delicate  health.^ 

Our  American  jDractice  in  the  appointment  of  probate 
guardians  is  usually  more  simple.  Petition  is  presented  by 
the  person  desiring  the  appointment,  whereupon  a  citation  is 
issued,  for  all  parties  interested  to  appear  on  a  certain  court 
day.  The  judge,  upon  the  day  specified,  after  a  summary 
hearing,  appoints  the  guardian,  and  issues  letters  of  guar- 
dianship upon  filing  bond  with  proper  security.  Appeal  may 
be  taken  within  a  limited  time  by  any  person  aggrieved,  and 

1  Macpliers.  Inf.  106,  107,  and  cases         *  Ex  parte  Bond,  11  Jur.  114. 
cited;  2  Kent  Com.  227.  ^  Stutely  v.  Harrison,   1  Ired.   Eq. 

2  Marpliers.  Inf.  107,  108 ;  2  Kent  256 ;  13  Jur.  800.  And  see  Benison  v. 
Com.  227.  Worsley,  15  E.  L.  &  Eq.  317. 

3  Supra,   §§    301,    304  ;    Macphers. 
Inf.  78,  109. 

432 


CHAP.  II.]  APPOINTMENT    OF    GUAKDIANS.  §  308 

the  tribunal  of  last  resort  then  hears  the  parties,  determines 
the  choice,  and  makes  a  final  decree,  —  to  wliieh  the  lower 
court  conforms  and  issues  letters  of  guardianship  accordingly. 
The  infant,  if  under  fourteen,  is  rarely  produced  in  court, 
nor  does  the  judge  make  an  order  of  reference.^ 

§  308.  Effect  of  Appointment ;  Conclusiveness  of  Decree,  &c, 
—  Fourth.  The  appointment  of  a  chancery  guardian  is  of 
itself  an  act  exercised  by  the  court  of  highest  autliority,  in 
such  matters.  The  appointment  cannot  be  impeached  else- 
where, nor  set  aside  by  a  common-law  tribunal.  The  court 
which  creates  the  guardian  superintends  his  acts  and  removes 
him  if  necessary.  Such  is  tlie  nature  of  chancery  jurisdic- 
tion wherever  it  exists.^  But  the  effect  of  appointments 
made  by  probate  authority  is  not  the  same.  In  general,  the 
same  principles  apply  as  in  grants  of  administration  ;  probate 
jurisdiction  being  much  the  same,  whether  over  tlie  estates  of 
deceased  persons  or  of  infants.  For  fraud  or  excess  of  juris- 
diction, letters  of  probate  guardianship  may  be  attacked  col- 
laterally ;  not  otherwise.  And  a  person  sued  in  the  common- 
law  courts  cannot  defend  on  the  ground  that  the  guardian 
is  unsuitable  for  his  trust.  The  letters  of  guardianship  suf- 
ficiently disprove  it.  They  are  the  guardian's  credentials  of 
authority  everywhere,  and,  if  improperly  issued,  should  be 
revoked  by  the  court  which  can  issue  them.^ 


1  For  practice  in  particular  States,  spected  by  the  court.   Adams's  Appeal, 

see  local  statutes;  also  Smith's  (Mass.)  38  Conn.  301;  supra,  §  301.    Where  ap- 

Prob.   Practice ;    Conist.    Dig. ;    Reese  pointinent    is    made    on    the    ground 

(Ga.)    Manual  ;    Watson  v.    Warnock,  of    estate,    the    ward    being    non-resi- 

31  Ga.  716.     Next  of  kin  may  appeal,  dent,  statute   requirements   as    to   no- 

Taff  V.    Hosnier,  14  Mich.  249.     And  tice  must  be    strictly  pursued,  or  all 

see  Re  Feeley,  4  Redf.  S06.  subseqtient   proceedings    may   be  ren- 

As  to  the  requisites  in  appointing  dered  void.  Seaverns  v.  Gerke,  3  Saw- 
guardian  for  an  insane  person,  see  An-  yer,  3.)8. 
gell  V.  Probate  Court,  11  R.  I.  187.  ^  Macphers.  Inf.  119. 
Where  the  intended  ward  is  of  full  ^  Speight  v.  Knight,  11  Ala.  461; 
age,  notice  to  him  is  the  only  notice  Kimball  f.  Fisk,  39  N.  H.  110  ;  Mathews 
needful,  unless  the  statute  prescribes  v.  Wade,  2  W.  Va.  464 ;  Warner  v. 
otherwise.  Hamilton  y.  Probate  Court,  Wilson,  4  Cal.  310.  As  to  the  effect  of 
9  R.  I.  201.  But  statutes  differ  on  this  defective  notice  in  probate  appoint- 
point.     Morton  v.  Sims,  64  Ga.  298.  ments,  see  Davison  y  Johonnot,  7  Met. 

A  minor  entitled  to  iiis  own  choice  388 ;    Breed    v.   Pratt,    13   Pick.    115 ; 

may  appeal  if  that  choice  is  not   re-  Brigham  v.  Boston,  &c.  R.  K.  Co.,  102 

28  433 


§  308  THE   DOMESTIC   RELATIONS.  [PAKT    IV. 

The  decree  of  the  court  appointing  a  guardian  is  prima 
facie  evidence  of  the  ward's  disability ;  ^  and  is  even  held 
conclusive  in  some  cases.  It  would  be  unreasonable  to  com- 
pel the  guardian  of  an  insane  person  or  spendthrift  to  furnish 
proof  of  his  ward's  condition  in  every  collateral  suit  on  his 
behalf,  and  to  encounter  new  investigations  of  facts  already 
established,  concerning  which  men's  minds  great!}'  differ. 
But  the  priyna  facie  evidence  of  infancy  is  generally  simple 
and  easily  obtained.  The  authority  of  his  guardian  turns 
upon  a  simple  question  of  fact,  —  the  date  of  birth.  And 
while  we  apprehend  that  the  recitals  contained  in  letters 
of  guardianship  afford  ^?rma/flciV?  proof  on  this  point,  in  all 
contests  involving  the  guardian's  authority,  the  presumption 
thus  raised  must  be  very  slight,  since  it  is  common  to  issue 
letters  of  probate  guardianship  upon  the  mere  allegation  of 
infancy  in  the  petition  and  without  special  proof.^ 

One  who  has  been  appointed  guardian  and  acted  as  such, 
cannot  deny  the  jurisdiction  of  the  court  which  appointed 
him  in  a  collateral  suit.^  If  he  ascertains  that  his  appoint- 
ment was  without  jurisdiction,  he  should  surrender  his  letters 
at  once  and  cease  to  act.  But,  as  we  shall  presently  see,  a 
liability  may  exist  from  the  fact  that  one  irregularly  or 
wrongly  appointed  undertakes  the  office  of  guardian.^ 


Mass.   14 ;     Cleveland  v.   Hopkins,    2  "Where   there    was    jurisdiction  for 

Aik.  394;  Redman  r.  Chance,   32  Md.  appointment  both  on  grounds  of  lunacy 

42;  Chase  r.  Hatliaway,  14  Mass.  222;  and   infancy,  after  lapse  of  time,  pre- 

People  V.  Wilcox,  22  Barb.  178  ;  Palm-  sumption  is  favored  that  the  court  made 

er  V.    Oakley,  2   Doug.   4o-3 ;  Sears  v.  the  appointment  cover  both  grounds, 

Terry,  26  Conn.  273  ;  Gronficr  r.  Puy-  or  performed    its   full    duty.     King  v. 

mirol,  19  Cal.  629.     As  to  otlier  infor-  Bell.  36  Ohio  St.  4G0.     Here   a   new 

malities,  see  State  v.  Hyde,  29  Conn,  bond  was  taken  after  the  ward  arrived 

.504  ;  Lee  v.  Ice,  22  Ind.  384.     The  let-  at  full  age. 

ter  of  guardianship  need  not  recite  tlie  ^  Wh.ite  v.  Palmer,  4  Mass.  147. 

mode  and   particulars  of   nomination,  ^  Leonard  v.  Leonard,  14  Pick.  280. 

but  is  in  the  nature  of  a  certificate  or  See  2  Greenl.  Evid.  §§  303-368. 
commission.       King   v.  Bell,  30  Ohio  '^  Tiiurston  v.  Holbrook's  Estate,  31 

St.  400;  Burrows  v.  Bailey,  34  Mich.  Vt.  354 ;  Hines  r.  Mullins,  2-5  Ga.  096; 

64.     A  guardian  appointed  by  the  pro-  Fox   v.   Minor,   32   Cal.   Ill;    State  v. 

bate  court  of  a  State  in  rebellion  must  Lewis,  73  N.  C.  138. 
be  reappointed  when  the  rightful  gov-  *  See  quasi  Guardian,  jaosi,  c.  4. 

ernment    is   re-established.      Troy    v. 
Ellerbe,  48  Ala.  624. 

434 


CHAP.  III.]    TERMINATION  OF  GUARDIAN'S  AUTHORITY.  §  311 

§  309.  Civil-Law  Rule  of  appointing  Guardians.  —  The  prin- 
ciples of  the  civil  law,  as  later  adopted  in  Holland,  France, 
and  Spain,  with  reference  to  the  jurisdiction  and  method  of 
appointing  guardians,  differ  not  greatly  from  ours.  The  juris- 
diction competent  to  mal\e  the  selection  was  tliat  of  the  dom- 
icile of  the  minor,  or  in  which  his  property  was  situated. 
Under  the  French  Code,  a  family  council  is  called  together  at 
the  instance  of  the  parties  interested,  and  nominates  a  suita- 
ble person  or  persons  to  take  the  trust,  where  the  children 
are  orphans  and  not  otherwise  provided  for ;  and  these  per- 
sons, when  tliey  are  approved  by  the  judge,  take  an  oath  well 
and  faithfully  to  discharge  their  trust  and  complete  the  neces- 
sary qualifications.  In  Louisiana,  the  selection  is  made  by 
the  family  council  in  a  similar  manner.^ 


CHAPTER   III. 

TERMINATION   OF   THE   GUARDIAN'S   AUTHORITY. 

§  310.  How  the  Guardian's  Authority  is  terminated.  —  Guar- 
dianship lasts  until  the  end  of  the  period,  for  which  it  was 
instituted.  But  it  may  be  sooner  terminated  by  the  death  or 
marriage  of  the  ward,  or  by  the  death,  resignation,  removal, 
or  supersedure  of  the  guardian  himself ;  or,  if  the  guardian 
be  a  female,  by  her  marriage.  These  topics  will  be  consid- 
ered, in  order. 

§  311.  Natural  Limitation;  Ward  of  Age,  &c.  —  As  the  rela- 
tion of  guardian  and  ward  usually  exists  for  merely  temporary 
purposes,  it  is  plain  that,  when  those  purposes  are  fulfilled, 
the  trust  must  terminate.  The  object  of  guardianship,  in  the 
case  of  infants,  is  fulfilled  when  the  infant  becomes  of  age, 
for  he  is  then  free  and  competent,  under  the  law,  to  transact 
his  own  business  and  control  his  own  person.  No  guardian 
therefore,  of  an  infant,  whether  a  socage,  natural,  testamen- 

1  3  Burge  Col.  &  For.  Laws,  938-943 ;  2  Kent  Com.  231. 

435 


§  811  THE   DOMESTIC    RELATIONS.  [PART   IV. 

tar}^  chancery,  or  probate  guardian,  can  act  in  such  capacity 
after  tlie  ward  is  twenty-one  years  old  or  has  reached  ma- 
jority ;  but  should  present  his  account  and  settle  with  the 
late  ward.^ 

But  the  natural  limitation  of  the  guardian's  authority  may 
be  even  sooner,  if  derived  from  testamentary  appointment. 
For  the  testator  may  designate  a  shorter  period  or  some  par- 
ticular event  which  shall  determine  the  relation.  Thus,  if  he 
appoints  his  wife  to  be  guardian  until  her  remarriage,  her 
trust  terminates  on  marrying  again.^  And  if  no  successor 
was  indicated  in  the  will,  a  chancery  or  probate  appointment 
must  supply  the  vacancy.'" 

The  legal  authority  of  guardians  in  socage  also  terminated, 
strictly  speaking,  when  the  infant  became  fourteen.^  So  did 
that  of  guardians  for  nurture,  as  distinguished  from  those  by 
nature.^  This  was  because  the  ward  was  recognized  as  par- 
tially qualified  to  act  for  himself,  having  passed  through  the 
period  of  nurture.  He  was  then  allowed  to  elect  a  guar- 
dian.^ Still  the  guardianship  continued  effectual  during  mi- 
nority in  both  cases,  unless  a  new  choice  was  made  by  the 
ward.'^  But  no  guardians  in  socage,  for  nurture,  testamentary, 
or  by  judicial  appointment,  were  ever  rendered  devoid  of 
power  by  the  mere  fact  that  the  infant  had  passed  the  period 
of  nurture.  An  anomalous  exception  is  found  in  Ohio,  where 
it  has  been  held  that  probate  guardianship  wholly  ceases 
when  the  ward  reaches  twelve  if  a  female,  or  fourteen  if  a 
male,  and  that  a  new  appointment  must  then  be  made.^  This 
rule  is,  however,  one  of  statutory  construction;  and  while 
the   ward,  on   ariiving   at   fourteen,  may  have    the  statute 

1 1  Bl.  Com.  461, 4G2,  Harg.  n. ;  2  Kent  &  lb. 

Com.   221-227.      Statutes   relative    to  «  1  Bl.  Com.  462,  Harg.  n. ;  and  see 

guardiansliii)  are  sometimes  explicit  on  ch.  1,  supra. 

this  point.     Bournes  Maybin,3  Woods  ''Rex  v.  Pierson,  Andr.  313;   Men- 

C.  C.  724;  Stroup  v.  State,  70  Ind.  4U5.  des  v.  Mendes,  3  Atk.  624.      And  see 

2  Selby  V.  Selby,  2  Eq.  Ca.  Ab.  488;  Macphers.  Inf.  41,  65;  Byrne  v.  Van 
Holmes  r.  Field,  12  III.  424;  Corrigan  Hoesen,  5  Johns.  66. 

V.  Kiernan.  1  Bradf.  208.  »  Perry  v.  Brainard,  11   Ohio,  442; 

3  Macpiiers.  Inf.  104,  and  cases  cited;  Maxson  v.  Sawyer,  12  Oiiio,  195.  See 
supra,  §§  287,  290,  303.  Dibble  v.  Dibble,  8  Ind.  307  ;  Matter  of 

*  1  Bl.  Com.  461,  Harg.  n. ;  2  Kent    Dyer,  5  Paige,  534. 
Com.  222. 

436 


CHAP.  III.]    TEEMINATION  OF  GUARDIAN'S  AUTHORITY.  §  313 

right  to  choose  a  new  probate  guardian,  the  rule  is  that  such 
guardian  should  be  first  designated,  judicially  approved  and 
qualified  before  the  former  guardian  can  be  consideied  as  dis- 
charged from  his  trust. ^ 

No  more  precise  limit  can  be  assigned  to  the  authority  of 
guardians  over  insane  persons  and  spendthrifts,  than  that  of 
the  ward's  necessities.  When  he  becomes  restored  to  reason, 
or  is  otherwise  fit  to  control  his  own  person  and  estate,  this 
guardianship  ceases ;  for  the  purposes  of  the  trust  are  felt  no 
longer.  But  a  period  so  difficult  to  fix  should  be  judicially 
determined  ;  for  which  cause  a  formal  discharge  from  guar- 
dianship is  to  be  sought  and  obtained,  and  meantime  the 
guardian's  authority  will  continue.^ 

§  312.  Death  of  the  Ward.  —  Death  of  the  ward  necessarily 
terminates  guardianship.  And  after  the  ward's  death  the 
guardian's  only  duty  is  to  settle  up  his  accounts  and  pay  the 
balance  in  his  hands  to  the  ward's  personal  representatives, 
whereupon  his  trust  is  completely  fulfilled.^ 

§  313.  Marriage  of  the  Ward.  —  The  lawful  marriage  of  any 
ward,  whether  male  or  female,  must  necessarily  affect  the 
rights  of  the  guardian.  So  far  as  the  ward's  person  is  con- 
cerned, there  can  be  no  question  that  the  guardianship  ends. 
Marriage  is  paramount  to  all  other  relations,  and  its  proper 
continuance  being  inconsistent  with  guardianship  of  the  per- 
son, the  latter  yields  to  it,  whatever  may  be  the  sex  of  the 
ward.  But  as  to  the  estate,  the  rule,  in  view  of  late  mar- 
ried women's  statutes,  is  not  so  clear.  If,  however,  a  male 
ward  marries  a  female,  whether  she  be  minor  or  adult,  his 
guardian  retains  power  over  his  estate,  as  before,  until  he  be- 
comes of  age.* 

1  Brycey.  Wynn,  50  Ga.  332.  S>ipra,  ceased  ward's  estate.  Beavers  v.  Brew- 
§  .301.  ster,  62  Ga.  574. 

2  Dyce  Sombre's  Case,  1  Phil.  Ch.  *  Reeve  Dom.  Pel.  328  ;  2  Kent  Com. 
437;  Ilovey  v.  Harmon,  49  Me.  269;  226;  Bac.  Abr.  Guardian  (E)  ;  Eyre  v. 
Wendell's  Case,  IJolins.CIi.  600;  Kim-  Countess  of  Sbaftesbury,  2  P.  Wms. 
ball  r.  Fiske,  39  N.  H.  110  ;  Cliase  v.  103  ;  Mendes  v.  Mendes,  3  Atk.  619  ;  ib. 
Hathaway,  14  Mass.  222;  Hooper  v.  1  Ves.89;  Jones  y.  Ward,  10  Yerg.  160. 
Hooper,  2  )  Mich.  435.  The  guardian  of  an  infant  husband  is 

3  In  some  States  the  guardian  is  clothed  with  the  liusbaml's  power  of 
charged    with    administering    his   de-  reducing  to  possession.    Ware  r.  Ware, 

28  Gratt.  670.    And  f=ec  supra,  §§  56,  71. 

437 


§  313  THE   DOMESTIC   PwELATIONS.  [PART   IV. 

Hence  arises  a  difficulty  where  a  male  and  female  ward 
nuuiy,  both  being  minors  and  having  estates  in  the  hands  of 
their  respective  guardians.  Does  the  husband,  though  under 
age,  take  all  the  rights  of  an  adult  husband  ?  Or  does  the 
wife's  estate  remain  in  keeping  of  her  guardian  until  the 
husband  is  old  enough  to  control  it  in  person  ?  The  better 
opinion  is  that  it  goes  to  the  husband,  whatever  his  age.  The 
inevitable  consequence  is  that  the  husband's  guardian  must 
take  it  from  the  wife's  guardian,  and  hold  both  estates  during 
minority.  This  seems  an  awkward  arrangement,  but  it  is 
nevertheless  the  lawful  one.  More  troublesome  would  be  a 
case  under  the  recent  statutes  in  this  country  relative  to  mar- 
ried women,  concerning  which  we  do  not  find  an  important 
decision.  But  it  seems  the  technical  rule  applies,  as  before, 
to  the  detriment  of  the  female  ward's  interests.  It  might  be 
well  to  declare  by  statute  that  tlie  wife's  guardian  shall  con- 
tinue to  manage  her  estate  during  her  minority.^ 

The  marriage  of  the  female  ward,  it  is  said,  does  not,  ipso 
facto,  determine  the  authority  of  her  guardian  over  her  estate. 
Hence  an  order  of  court,  transferring  the  custody  of  the  prop- 
erty to  the  husband,  is  first  necessary;  to  which  order  the  hus- 
band will  be  entitled  upon  motion.  Such  is  the  rule  declared  in 
New  York.^  But  while  in  England  tlie  Court  of  Chancery 
never  appoints  a  guardian  for  a  female  infant  after  marriage, 
neither  does  it  discharge  an  order  for  a  guardian  because  of  mar- 
riage ;  because,  as  Mr.  Macpherson  thinks,  the  marriage  of  a 
female,  if  valid,  supersedes  guardianship,  of  its  own  force.^ 
Probate  wards  in  this  country  are  frequently  married,  and  their 
guardians  settle  their  accounts  without  order  of  court  or  revoca- 
tion of  letters,  on  the  supposition  that  the  marriage  ipso  facto 
puts  an  end  to  their  authority.  In  some  recent  cases  of  alleged 
trespass  on  a  female  infant's  lands,  it  has  been  ruled  that  the 
adult  husband  succeeds  to  the  place  of  her  guardian,  all  other 


1  See  Reeve  Dom.  TJel.  328  ;  2  Kent  Anon.,  8  Sim.  J546  ;  Armstrong  v.  Walk- 
Corn.  226 ;  Anon.,  8  Sim.  34G.  up,  12  Gratt.  608. 

2  Wliitaker's  Case,  4, Johns.  Cli. 376.  ^  Macphers.    Inf.  113,  citing  Roach 
But  see  contra,  Jones  v.  Ward,  10  Yerg.  v.  Garvan,  1  Ves.  160 ;  8  Sim.  336. 
160;  Nicholson  v.  Wilborn,  13  Ga.  4G7  ; 

438 


CHAP.  III.]    TERMINATION  OF  GUAEDIAN's  AUTHORITY.   §  315 

guardianship  ceasing  at  her  marriage.^  And  it  is  held  that  a 
female  infant's  guardian  is  not  responsible  to  her  for  money 
which  was  liers,  and  which  he  has  paid  over  to  her  adult 
husband,  in  good  faith,  without  any  notice  or  presumption  of 
her  non-concurrence.2  The  local  statute  is  sometimes  explicit 
enough  to  relieve  one  of  doubt  on  the  main  question.^ 

§  314.  Death  of  the  Guardian.  —  Guardianship  is  terminated 
by  the  deatii  of  the  guardian.  But  the  ward  does  not  thereby 
necessarily  become  free,  for  a  successor  in  the  trust  continues 
to  control  hira.  The  executor  or  administrator  of  the  guar- 
dian, as  such,  has  no  authority ;  for  guardiansliip  is  a  per- 
sonal trust  and  not  transmissible.  But  he  should  close  the 
accounts  of  the  deceased  guardian  in  court  and  pass  the 
balance  over  to  the  successor.  This  successor  is  the  person 
next  indicated  in  the  will  appointing  testamentary  guardians, 
or  the  survivor  of  joint  guardians,  or  some  one  appointed  in 
chancery  or  probate  to  fill  the  vacancy,  as  the  case  may  be.* 

§  315.  Resignation  of  the  Guardian. —  The  ofhce  of  a  guar- 
dian was  regarded  as  something  so  honorable  at  the  common 
law  that  it  could  not  be  easily  refused,  much  less  resigned. 
Natural  guardians,  of  necessity,  could  not  resign.  We  have 
seen,  in  another  connection,  how  far  the  natural  guardian  may 
practically  surrender  his  children's  custody,  by  allowing 
others  to  adopt  them,  by  placing  them  in  a  charitable  institu- 
tion, and  the  like  ;  which  is  the  onlj^  sense  in  which  this  guar- 
dianship may  be  considered  as  voluntarily  transferred.  So 
guardians  in  socage,  being  designated  by  the  law,  could  not 
in  strictness  resign  ;  if  they  could  shift  their  authority  at  all,  it 

1  Porch  V.  Fries,  3  C.  E.  Green,  204;  to  adult  husband's  settlement,  60  Ind. 
Bartlett  v.  Cowles,  15  Gray,  445.  41. 

2  Beazley  v.  Harris,  1  Bush,  533.  *  Co.  Litt.  89  ;  Bac.  Abr.  Guardian 
See,  as  to  the  wife's  remedies,  Story  v.  (E)  ;  Connelly  i\  Weatlierly,  33  Ark. 
Walker,  04  Ga.  614.  058.     Wlien  a  guardian,  whose  author- 

3  Some  local  codes  declare  that  ity  has  terminated  on  tlie  ward's  arrival 
when  tlie  female  ward  marries  an  adult  at  majority,  becomes  administrator  of 
the  guardianship  sliall  cease.  Bourne  w.  the  ward's  estate,  the  ward  dying  soon 
Maybin,  3  Woods  C.  C.  724;  Kidwell  ?'.  after  and  before  the  guardianship  ac- 
State,  45  Ind.  27;  State  y.  Joest,  40  Ind.  counts  are  closed,  liis  liability  for  the 
235.  In  Alabama  tlie  married  ward  property  is  that  of  administrator.  Hut- 
may  call  her  guardian  to  account,  ton  r.  Williams,  60  Ala.  107.  See  post, 
Wise  V.  Norton,  48  Ala.  214.    See,  as  c.  9,  as  to  marriage  of  a  ward. 

439 


§  315  THE   DOMESTIC   RELATIONS.  [PART   IV. 

must  have  been  by  assignment.  There  is  reason  to  believe 
that,  before  the  statute  of  Marlbridge,^  they  could  assign,  but 
only  to  the  extent  of  placing  the  ward's  body  in  custody  of 
another.  In  later  times,  no  assignment  whatever  has  been 
permitted.  For,  as  Lord  Connnissioner  Gilbert  observed, 
guardianship  in  socage  is  an  interest,  not  of  profit,  but  of 
honor,  committed  to  the  next  of  kin,  inherent  in  the  blood  ; 
and  therefore  not  assignable.^ 

The  resignation  of  a  testamentary  guardian  is  not,  as  a 
rule,  permitted.  In  1752  the  guardians  of  the  young  Earl  of 
Spencer,  who  was  then  in  his  eighteenth  year,  petitioned  the 
Court  of  Chancery  that  they  might  be  discharged  from  their 
trust,  as  he  was  then  going  abroad  on  his  travels,  and  would 
not  be  under  their  care.  Lord  Hardwicke  (as  the  reporter 
says)  refused  it  with  some  warmth,  as  a  thing  which  had 
never  been  done  at  the  request  of  the  guardians  themselves  ; 
and  added  that,  if  they  would  not  continue  to  act  in  the 
trust,  as  they  had  accepted  it,  he  should  compel  them.  But 
afterwards,  at  the  importunity  of  counsel,  finding  that  the 
mother  and  the  infant  also  acceded  to  the  request,  he  yielded 
so  far  as  to  allow  a  petition  to  be  filed  on  behalf  of  the  infant, 
upon  which  he  made  an  order  that  the  care  and  direction  of 
the  infant's  education  and  person  should  be  committed  to  two 
near  relatives  until  further  order,  and  that  the  allowance  for 
his  maintenance  and  education  should  be  paid  to  them.  But 
in  doing  so  the  Lord  Chancellor  declared  that  while  the  spe- 
cial circumstances  of  this  case  justified  his  action,  he  would 
not  in  general  comply  with  such  petitions,  nor  should  this 
case  be  drawn  into  precedent.  The  court,  he  added,  must 
take  care  of  the  infant,  even  though  it  did  not  punish  the 
guardian  for  not  doing  so.^ 

Though  this  was  a  case  of  testamentary  guardianship,  we 
presume  the  rule  to  be  equally  strict,  or  nearl}-  so,  in  case  of 
a  chancery  guardian.     In  either  instance  the  court  can  make 

1  52  Hen.  III.  c.  17.  Lift.  88  b,  Harg.  n.  13,  and  authorities 

2  Gilb    Eq.  Rep.  175.     For  full  dis-    cited. 

cussion,  see  Macphers.  luf.  25-27 ;  Co.         ^  Spencer  v.   Earl  of  Chesterfield, 

Ambl.  lie. 
440 


CHAP.  III.]    TERMINATION  OF  GUARDIAN'S  AUTHORITY.    §  315 

an  order,  as  deemed  best  for  the  infant's  interests.  There 
need  be  no  summary  removal.  Chancellor  Kent,  in  Ex  iJ arte 
Crumh^  claimed  that  chancery  could  doubtless  discharge  or 
charge  a  guardian,  even  if  appointed  b}'  a  surrogate  ;  but  that 
in  the  case  of  a  testamentary  guardian  there  should  be  very 
special  reasons  for  interference.  He  refused  here,  however, 
to  make  any  change,  there  being  no  special  cause  shown.^ 

It  is  now  frequently  provided  by  statute  that  probate  guar- 
dians and  otlier  trust  officers  may,  in  the  discretion  of  the 
court,  be  allowed  to  resign.  But  in  absence  of  such  legis- 
lation it  would  appear  that  no  such  guardian  can  resign  as 
a  matter  of  right ;  nor  can  the  probate  court  legally  accept 
his  resignation  and  appoint  a  successor.  Yet  it  is  held  in  Illi- 
nois that,  under  a  statute  which  permits  the  judge  ••'  to 
remove  guardians  for  good  and  sufficient  cause,"  he  may  con- 
sider resignation  a  sufficient  cause,  and  thereupon  discharge 
the  guardian.2  There  is  something  harsh  and  offensive  in 
the  removal  of  a  guardian  from  office.  Moreover,  numerous 
unforeseen  emergencies  may  arise,  so  as  to  render  the  contin- 
uance of  the  trust  improper  ;  as  if  the  guardian  should  become 
a  confirmed  invalid,  or  make  himself  obnoxious  to  the  ward 
and  his  relations,  or  display  a  want  of  prudence  in  managing 
the  estate  not  inconsistent  with  good  intentions  nor  suffi- 
ciently gross  to  justify  a  court  in  removing  him.  He  might 
be  fully  aware  of  the  advantage  of  a  change  to  all  parties 
concerned,  and  might  desire  to  be  relieved,  provided  he  could 
withdraw  with  honor,  and  without  submitting  to  a  humili- 
ating investigation  of  petty  and  insufficient  grounds  of  com- 
plaint. This  opportunity  is  aiforded  in  allowing  him  to  resign. 
So,  too,  the  guardian's  convenience,  apart  from  all  other  con- 
siderations, might  lead  him  to  withdraw.  And  further,  as 
one  has  observed  of  testamentary  appointees,  "  it  can  never 
be  for  the  infant's  benefit  to  continue  him  in  the  care  of  a 
negligent  or  reluctant  guardian."  ^ 

1  Ex  parte  CvVLmb,  2  Zo\m&.  Ch.  439.  ^  IMacphers.  Inf.  128,  commenting 
See  2  Kent  Com.  227.                                  upon  Spencer  v.  E:irl  of  Chesterfield, 

2  Young  y.  Lorain.  11  111.  624.     See     supra.     As  to  a  guardian's  resignation, 
Pepper  v.  Stone,  10  Vt.  427.  see  King  v.  Hughes,  52  Ga.  600  (guar- 
dianship of  a  lunatic). 

441 


§  316  THE   DOMESTIC    RELATIONS.  [PART   IV. 

§  316.  Removal  aud  Supersedure  of  the  Guardian.  —  The 
chancery  court  may  undoubtedly  remove  all  guardians  of  its 
own  appointment,  and  substitute  others  at  discretion  for 
proper  cause.  This  rule  extends  still  further  :  for,  according 
to  American  authority,  chancery  may  remove  all  guardians, 
whether  appointed  by  the  court  itself,  by  probate  tribunals, 
by  testament,  or  even  by  express  act  of  the  legislature,  when- 
ever the  guardian  abuses  his  trust  or  the  interests  of  the  ward 
require  it.^  This  statement  is  somewhat  too  sweeping,  so  far 
as  the  English  courts  are  concerned.  So,  too,  probate  tribu- 
nals are  authorized  in  most  if  not  all  of  the  States  to  remove 
guardians  of  their  own  appointment  on  good  and  sufficient 
cause.2 

And  as  two  persons,  or  sets  of  persons,  cannot  at  the  same 
time  hold  the  same  trust,  it  follows  that  one  guardian  must 
be  removed,  or  a  vacancy  otherwise  created,  before  the  court 
can  make  a  new  ai^pointment.  This  principle,  apparently 
simple,  has  sometimes  been  overlooked  ;  when,  for  instance, 
a  court  has  issued  new  letters  without  revoking  the  old,  or 
seeks  to  supersede  a  testamentary  by  a  probate  guardian. 
The  appointment  of  a  new  guardian  does  not  of  itself  termi- 
nate the  authority  of  one  previously  chosen.  It  is  an  act 
without  jurisdiction,  and  void.  But  natural  guardians  need 
not  be  formally  removed,  nor  guardians  in  socage.  The  rule 
applies  onl}'-  to  guardians  testamentary  and  guardians  by 
judicial  appointment,  who  hold  by  a  higher  authority  than 
either  of  these.^^ 

If  a  guardian  does  not  behave  to  the  satisfaction  of  the 
Court  of  Chancery,  orders  regulating  his  conduct  are  fre- 
quently made   upon  him ;  and  if  any  such  steps  be  taken  as 

1  Cowls  iJ.  Cowls,  3  Gilm.  435.  See  2  Simpson  v.  Gonzales,  15  Fla.  9; 
£'arparteCrumb,2  Jolins.  Ch.  439;  Dis-  7?e  Clement,  25  N.  J.  Eq.  508;  Mc- 
brow  V.  Ilensliaw,  8  Cow.  349.  A  tes-  Phillips  v.  McPliillips,  9  R.  I.  536. 
taraentary  guardian,  in  many  States,  ^  Bledsoe  v-  Britt,  6  Yerg.  458; 
may  now  be  removed  on  the  same  Grant  y.  Whitaker,  1  Miirph.  231  ;  Rob- 
grounds  which  warrant  the  removal  of  a  inson  v.  Zollinger,  9  Watts,  169;  Fay 
probate  guardian.  Damarell  t".  Walker,  v.  Hurd,  8  Pick.  528;  Thomas  i\  Bur- 
2  Redf.  198.  But  sound  discretion  rus,  23  Miss.  550;  2  Ch.  Cas.  237; 
should  be  used.  Sanderson  v.  Sander-  Morgan  v.  Dillon,  9  Mod.  141;  Copp  v. 
son,  79  N.  C.  369.  Copp,  20  N.  H.  284. 

442 


CHAP.  III.]    TERMINATION  OF  GCTARDIAN'S  AUTHORITY.  §  316 

to  induce  suspicion  that  the  infant  will  suffer  by  the  conduct 
of  the  guardians,  the  court  will  interpose.^  This  is  the  Eng- 
lish rule  as  to  guaidians  in  general.  But  in  this  country, 
probate  guardianship  is  usually  determined  for  misconduct  by 
a  summary  removal. 

There  can  be  no  removal  of  a  probate  guardian  without 
cause  shown .2  Courts  of  chancery  are  equally  bound  to  ob- 
serve this  principle  ;  but  their  discretion  is  absolute.  A  mere 
stranger  cannot  apply  to  have  a  guardian  removed ;  it  must 
be  a  party  in  interest.^  Nor  can  one  who  has  been  properly 
removed,  though  the  mother  herself,  claim  any  right  of  recom- 
mending a  successor.* 

Among  the  causes  which  have  been  deemed  sufficient  for 
the  removal  of  a  guardian  are  these :  Appointment  to  the 
trust  without  proper  notice  to  other  parties  interested.^  Gross 
and  confirmed  habits  of  intoxication.^  Any  breach  of  official 
duties  amounting  to  misconduct.'^  Failure  to  file  inventory  or 
accounts  as  required  by  the  terms  of  his  trust.^  Employing 
the  ward  or  using  the  ward's  funds  for  the  guardian's  own 
advantage,  to  tlie  ward's  detriment.^  Failure  to  support  the 
ward  with  income  ample  for  doing  so,  especially  if  the  guar- 
dian be  the  father.^*^  Abandonment  of  the  trust.^^  Ignorance  or 
imprudence  on  the  part  of  the  guardian,  whereby  the  Avard's 
interests  suffer.^^  Waste  of  the  ward's  estate.'^  But  not  in- 
solvency alone  ;  though  it  is  otherwise  wdiere  one  has  been 
adjudged  a  bankrupt,  or  is  guilty  of  fraud.^^     Nor  is  inter- 


1  Roach  iv  Garvin,  1  Ves.  160  ;  Duke  »  Kimmel  v.  Kinimel,  48  Ind.  203: 
of  Beaufort  v.  Berty,  1  P.  Wins.  705.  Dickerson  v.  Dickerson,  31  N.  J.  Eq. 

2  Whitney  v.  Whitney,  7  S.  &  M.  652. 

740.  9  Suavely  v.  Harkrader,   29   Gratt. 

3  Colton  V.  Goodson,  1  How.  (Miss.)  112. 

295.  I0i?e  Swift,  47  Cal.429. 

*  Hamilton  v.  Moore,  32  Miss.  205.  n  Lefever  i'.  Lefever,  6  Md.  472. 

s  Moreliouse  v.  Cooke,  Hopk.  226;  i-  Nicliolson's  Appeal,  20  Penn   St. 

Ramsay  v.  Ramsay,  20  Wis.  507.  50. 

6  Kettletas  v.  Gardner,  1  Paige  Ch.  i3  Dickerson  i'.  Dickerson,  31  N.  J. 
488.  Eq.  652. 

7  Barnes  v.  Powers,  12  Ind.  341;  i*  Chew's  Estate,  4  Md.  Ch.  60;  Coop- 
Sweet  V.  Sweet,  Speers  Eq.  309;  er's  Case,  2  Paige  Cii.  34.  See  Lord 
O'Neil's  Case,  1  Tuck.  (N.  Y.  Surr.)  Thurlow,  in  Smith  y.  Bate,  2  Dick.  631. 
84. 

443 


§  317  THE   DOMESTIC    liELATIONS.  [PAIiT    IV. 

meddling  with  the  estate  before  qualification  as  guardian  a 
ground  for  removal,  if  in  good  faith  and  by  advice  of  coun- 
sel.^ In  Indiana,  as  the  statute  provides,  one  can  be  displaced 
for  unfaithful  performance  of  the  trust  or  insufficient  se- 
curity.^ Guardians  may  in  some  States  be  removed  wher- 
ever it  will  be  for  the  ward's  interest.^  And  it  appears  that 
there  may  be  a  combination  of  circumstances  to  justify  the 
removal.*  "  Improper  conduct,"  in  respect  of  the  care  of 
the  property  or  of  the  ward's  person,  is  sometimes  the  statute 
rule.^  And  in  Massachusetts  such  conduct  of  a  guardian  as 
tends  to  alienate  his  infant  ward's  affections  from  the  mother, 
who  is  a  person  of  good  character,  will  justify  his  removal, 
notwithstanding  the  mother  may  have  remarried.^ 

Religious  opinions  were  formerly  made  a  test  of  the  guar- 
dian's capacit}'  to  act.  Such  conflicts  seldom  arise  at  the 
present  day.  It  was  held  in  a  Pennsylvania  case,  a  few  years 
ago,  that  difference  of  belief  on  religious  subjects  constitutes 
no  cause  for  a  guardian's  removal,  if  no  harsh  or  unfair  means 
have  been  used  to  erase  the  impressions  left  by  the  parents 
on  the  child's  mind.^ 

§  317.  The  Same  Subject.  —  For  the  same  reason  that  non- 
residents are  held  incompetent  for  appointment,  guardians 
must  surrender  their  authority  when  they  move  out  of  the 
jurisdiction,  or  the  court  will  take  it  from  them.  This  rule 
is  not  uniform,  however,  in  all  the  States.  Under  the  statutes 
now,  as  formerly,  in  Indiana,  Alabama,  and  some  other  States, 
removal  from  the  State  constitutes  per  se  a  ground  for  dis- 
placement from  office.^  But  since,  as  we  have  seen,  non- 
residents may  sometimes  be  appointed  guardians  on  filing 
security,  the  more  reasonable  rule  is  to  make  them  liable  to 
displacement  whenever,  as  non-residents,  they  could  not  have 
been  appointed  in  the  first  instance.^     Removal  from  the  juris- 

1  Stone  V.  Dorrett,  18  Tex.  700.  ^  Perkins  v.  Finnegan,    105   Mass. 

-  Morgan  v.  Anderson,  6  Blackf.  503  ;  501. 

West  V.  Forsytlie,  34  Ind.  418.  ^  Nicliolson's  Appeal,  20  Penn.  St. 

3  Ex  parte  Criitclifield,  3  Yerg.  3-36.  50:  supra,  §  306. 

4  Windsor  t;.  McAtee,  2  Met.  (Ky.)  8  Nettleton  v.  State,  13  Ind,  159; 
430.  Cockroll  v  Cockrell,  -SG  Ala.  673. 

5  Slattery  v.  Smiley,  25  Md.  389.  ^  See  Speight  v.  Kniglit,  11  Ala.  461; 

414 


CHAP.  Ill]    TEEMINATION  OF  GUARDIAN's  AUTHORITY.  §  317 

diction  with  the  ward's  funds  nvAj  justify  summary  proceed- 
ings.^ 

As  in  making  appointments,  the  court  is  allowed  a  liberal 
discretion  over  removals,  and  its  decision  will  not  be  reversed 
on  appeal  unless  palpable  injustice  has  been  done.^  But  the 
guardian  is  entitled  to  notice  before  removal,  that  he  may 
appear  in  defence ;  and,  if  removed  without  such  notice, 
unless  he  has  waived  it  by  his  voluntary  appearance  in  court, 
he  has  good  ground  for  appeal ;  and  it  is  doubtful  whether  a 
new  appointment  under  such  circumstances,  has  any  validity 
whatever."^  The  authorities  are  clear  in  requiring  notice 
wherever  proceedings  for  removal  involve  the  guardian's  per- 
sonal character ;  l)ut  where  the  discharge  is  sought  on  other 
grounds,  and  the  ward's  rights  are  deemed  of  paramount  im- 
portance, as  when  one  under  guardianship  for  insanity  is 
restored  to  reason,  or  a  ward  arrived  at  fourteen  wishes  to 
exercise  the  privilege  of  nominating  a  successor,  removals 
without  notice  are  sometimes  sustained ;  ^  still  the  better 
opinion  is  in  favor  of  notice  in  all  cases.^ 

It  is  held  in  Vermont  that  when  a  guardian  who  has  been 
removed  from  office  appeals,  and  in  the  meanthue  another  has 
been  appointed  in  his  place  and  given  bonds,  the  powers  of 
the  old  guardian  cease,  and  the  new  one  takes  control,  until 
he  is  restored.^ 

We  have  seen  that  chancery  courts  in  this  country  claim 
the  right  of  removing  testamentary  guardians.  In  England, 
the  rule  is  not  laid  down  so  strongly.  Testamentary  guar- 
dians are  not  removed,  but  superseded  in  their  functions :  a 
refinement  adopted,  it  is  said,  out  of  deference  to  the  act  of 

also  s»/3ra,§  306;  Succession  of  Bookter,  Ala.  652.     As  to  a  revocation  of  letters 

18  La.  Ann.  1-57.     Going  into  tlie  Con-  wiiere  the  trust  lias  never  been  fully 

federate  lines  during  the  war  did  not  assumed,  or  the   appointment  was  11- 

forfeit  tutorsiiip.    Clement  v.  Sigur,  29  legal,  less  strictness  is  requisite.      See 

La.  Ann.  798.  Scohej'  v.  Gano,  .%  Ohio  St.  5.50. 

1  State  V.  Engeike,  G  Mo.  App.  356.  *  Hovey   v.   Harmon,  49   Me.   269 ; 

2  Nicholson's    Appeal,  '20   Penn   St.  supra,  eh.  2. 

50;    Isaacs  v.    Taylor,  3   Dana,    600;  ^  Montgomery    v.    Smith,  3   Dana, 

Young  V.  Young,  5  Ind.  513.  509 ;  Copp  r.  Copp,  20  N.   H.  284  ;  Lee 

3  Hart  V.  Gray,  3  Sumn.  339;  Gwin  v.  Ice,  22  Ind.  384.  But  see  Cooke  v. 
V.  Vanzant,7  Yerg.  143  ;  Myers  v.  Pear-  Beale,  11  Ired.  36. 

soil,  17  Ind.  405;  Croft  v.  Terrell,  15         6  state  v.  McKown,  21  Vt.  503. 

445 


§  318  THE   DOMESTIC   RELATIONS.  [PART   IV. 

Parliament.^  In  this  sense  are  to  be  understood  certain  ex- 
pressions of  Lord  Hardwicke  and  Lord  Redesdale,  which 
would  seem  to  extend  the  authority  of  the  court  to  actual 
removal  from  office.^  Lord  Nottingham,  in  Foster  v.  Benny, 
said  tliat  he  could  not  remove  a  guardian  constituted  by  act 
of  Parliament.'^  This  is  still  the  doctrine  of  the  English 
chancer}'- ;  but  it  exercises  full  jurisdiction  in  ordering  in- 
fants to  be  made  wards  of  court,  with  suitable  directions  for 
their  maintenance  and  education  ;  and  it  will  restrain  the 
testamentar}^  guardian  from  interference  with  the  i)erson  and 
estate  of  wards  thus  taken  under  its  protection.^ 

By  the  common  law,  certain  persons,  as  idiots,  lunatics, 
deaf  and  dumb  persons,  persons  under  outlawry  or  attainder, 
and  lepers  removed  by  writ  of  leprosy,  were  passed  over  in 
the  guardianship.  And  where  a  guardian  became  incapable 
of  acting,  the  office  devolved  upon  the  next  person  to  whom 
the  inheritance  could  not  descend.^  Such  guardians  do  not 
appear  to  have  been  removed  from  office.  But  there  can 
be  little  doubt  that  the  insanity  of  a  probate  or  chancery 
guardian  would  be  good  cause  for  his  removal  or  supersedure  ; 
and  a  final  settlement  of  his  guardianship  accounts  would 
properly  be  required  from  his  own  guardian.^ 

§  318.  Marriage  of  Female  Guardian.  —  The  marriage  of  a 
female  guardian  may  terminate  her  authority  ;  though  that 
of  a  male  guardian  never  does.  The  old  rule  of  the  common 
law  appears  to  have  been,  that  when  a  female  guardian  in 
socage  married,  her  husband  became  guardian  in  right  of  his 
wife  ;  but  that  on  her  death  guardiansliip  ceased  on  his  part, 
and  went  to  the  infant's  next  relation.'^  Testamentary  guar- 
dianship in  England  seems  to  be  left  to  tlie  operation  of  the 
will  in  such  cases :  chancery  refusing  to  interfere   with  the 


1  Macphers.  Inf.  128.  also  M'Cullochs,  In  re,  1  Dru.  276  ;  12 

2  Lord  Hardwicke,  in  Roach  v.  Gar-  Jur.  100. 

van,l   Ves.    IfaO;    Lord  Redesdale,   in  5  Co.  Litl.  88,   89;  Macphers.   Inf. 

O'Keefe  v.  Casey,  1  Sell.  &  Lef.  106.  24,  25. 

3  2  Ch.  Cas.  237.  6  Modawell  v.  Holmes,  40  Ala.  391 ; 

4  Smith  t'.  Bate,  2  Dick.   631 ;  Ing-  Damarell  v.  Walker,  2  Redf.  198. 

ham  V.  Bickerdike,  G  Madd.  275.     See         '  Co.  Litt.  89  a  ;  Bac.  Abr.  Guardian 


446 


and  Ward  (E).    See  7  Vt.  372. 


CHAP.  III.]    TERMINATION  OF  GUARDIAN'S  AUTHORITY.  §  319 

testator's  own  directions.^  But  it  is  customary  for  tlie  father 
to  designate  successors  in  the  event  of  marriage.  What  has 
already  been  said  on  the  subject  of  appointing  married  women 
guardians  applies,  likewise,  in  this  connection.^  Certainly,  if 
marriage  does  not  absolutely  put  an  end  to  the  guardian's 
authority,  it  has  the  common-law  effect  of  joining  lier  hus- 
band in  the  trust ;  ^  and  yet,  according  to  some  American 
statutes,  the  fact  of  marriage  would  only  render  her  liable  to 
removal.  In  Louisiana,  the  mother,  by  the  advice  of  a  family 
meeting,  previous  to  her  remarriage,  may  be  retained  in  the 
tutorship  of  her  minor  children,  notwithstanding  her  remar- 
riage ;*  but  if  she  fails  to  procure  such  advice  she  loses  the 
tutorship.^ 

§  319.  Other  Cases  -where  a  Ne-w  Guardian  is  appointed. — 
There  are  some  other  cases  in  which  it  is  said  that  a  new 
guardian  may  be  appointed,  as  though  guardianship  had  al- 
ready determined.  Thus,  where  a  testamentary  guardian  has 
not  acted,  and  declines  to  act,  chancery  may  appoint  a  succes- 
sor.^ So  in  other  cases  wdiere  the  guardian  renounces  his 
appointment.''  Filing  a  bond,  with  proper  security,  is  some- 
times regarded  as  the  condition  precedent  to  a  probate  ap- 
pointment, and  it  is  thought  that  letters  need  not  be  revoked 
in    such    a  case.     But   this  is  by  no  means  a  settled  rule.^ 

1  Macphers.  Tnf.  129 ;  Morgan  v.  Dil-  wout  v.  Swartwout,  2  Redf.  52.  The 
Ion,  9  Mod.  135;  Dillon  v.  Lady  Mount  female  guardian  who  marries  must  not 
Cashell,  4  Bro.  P.  C.  306.  See  Corbet  abandon  her  rights  of  custody ;  her 
V.  Tottenham,  1  Ball  &  B.  59.  marriage  does  not,  in  Kentucky,   ex- 

2  See  si(/)ra,  §  306  ;  Martin  y.  Foster,  tinguish  her  authority.  Cotton  v. 
88  Ala.  G88  ;   Elgin's    Case,   1    Tuck.  Wolf,  11  Bush,  238. 

(N.  Y.  Surr.)  97;   Leavel   v.  Bettis,  8         *  Gaudet   v.   Gaudet,  14  La.  Ann. 

Bush,  74.  112. 

3  Wood  V.   Stafford,  50  Miss.    370 ;         5  Keene  ;;.  Guier,  27  La.  Ann.  2.32. 
supra,  §  80.      Statutes  in   some  States  ^  Ex  parte  Champney,  1  Dick.  350; 
change  the  old  rule,  and  expressly  au-  O'Keefe  v.  Casej',  1  Sch.  &  Lef.  106. 
thorize  a  married  woman   to  be  guar-          ^  McAlister  i'.  Olmstead,  1  Humph, 
dian.     Schoul.  Hus.  &  Wife,  appendix.  210 ;    Lefever   v.  Lefever,  6  Md.  472  ; 
As  to  requiring  in   such  case  the  hus-  Simpson  v.  Gonzalez,  15  Fla.  9. 
band's  written  consent  to  the  wife's  con-         ^  Russell  r.  Coffin,  8  Pick.  148;  Fay 
tinuance  in  otBce,  see  Hardin  v.  Helton,  "•  Hurd,   ib.  523  ;   Barns  i:  Branch,    3 
50  Ind.  319.      In  New  York  sfmhie  the  McCord,  19  ;  Clarke  v.  Darnell,  8  Gill  & 
widowed  mother's    remarriage   termi-  Johns.  111.      See  West  v.  Forsytlie,  34 
nates  her  guardianship,  and  under  the  Ind.  418;  Fant  v.  McGowan,  57   Miss, 
statute  she   can   be  removed.     Swart-  779. 

447 


§  320  THE   DOMESTIC   RELATIONS.  [PAKT   IV. 

Letters  of  guardianship  obtained  througli  material  false  rep- 
resentations may  be  revoked.^ 

Outlawr}-  and  attainder  of  treason  —  or  what  is  known  as 
civil  death  —  did  not  put  an  end  to  guardianship  in  socage  ; 
because,  it  was  said  tlie  guardian  had  nothing  to  his  own  use, 
but  to  the  use  of  the  heir.^  The  same  principle  doubtless 
applies  to  other  guardians.  But  a  guardian  might  be  properly- 
removed  on  such  grounds.  In  the  United  States,  local  statutes 
largely  regulate  the  general  subject  of  terminating  a  guar- 
dian's authority. 


CHAPTER   IV. 

NATURE    OF   THE   GUAEDIAN's   OFFICE. 

§  320.  Guardianship  relates  to  Person  and  Estate.  —  The 
powers  and  duties  of  a  guardian  relate  either  to  the  person  of 
the  ward,  or  to  the  ward's  estate,  or  to  both  person  and  estate. 
As  guardian  of  the  person,  he  is  entitled  to  the  custody  of 
the  ward  ;  he  is  bound  to  maintain  him  in  a  style  suitable  to 
the  latter's  means  and  condition  in  life ;  if  the  ward  be  a 
minor,  he  superintends  his  education  and  directs  him  in 
the  choice  of  a  pursuit ;  and  in  general,  he  supplies  the  place 
of  a  judicious  parent.  As  guardian  of  the  estate,  he  manages 
the  ward's  property,  both  real  and  personal,  with  faithfulness 
and  care,  changes  investments  whenever  necessary,  with 
permission  of  the  court,  pays  the  just  debts  of  the  ward,  col- 
lects his  dues,  puts  out  his  money  on  interest,  manages  his 
investments,  keeps  regular  accounts,  and  is,  in  effect,  the 
ward's  trustee.^  Whether  the  guardianship  be  in  socage, 
testamentary,  or  by  chancery  or  probate  appointment,  these 
powers  and  duties  are  essentially  the  same  ;  although,  as  we 
have  seen,  socage  guardianship  was  created  with  special  ref- 

1  Re  Clement,    25  N.   J.  Eq.   508.  2  Co  Litt.  88  6 ;  Macphers.  Inf .  26. 

The  Orphans' Court  may  thus  revoke.  ^  2  Kent  Com.  230-233. 

2b. 

448 


CHAP.  IV.]         NATURE   OF   GUARDIAN'S    OFFICE.  §  320 

erence  to  the  ward's  real  estate. ^  Moreover,  as  will  fully 
appear  in  the  succeeding  chapters,  chancery  and  probate  guar- 
dians are  brought  more  closely  under  judicial  control  and 
supervision  than  either  guardians  in  socage  or  testamentary 
guardians. 

But  while  guardianship  of  the  person  resembles  the  relation 
of  parent  and  child,  it  is  not  altogether  like  it.  The  parent 
must  support  his  child  from  his  own  means ;  and  in  return 
the  child's  labor  and  services  belong  to  him.  But  the  guar- 
dian is  not  bound  to  supply  the  wants  of  his  ward,  except 
from  the  ward's  own  estate  in  his  liands  and  the  liberality  of 
others,  though  it  were  to  keep  the  child  from  starving.  On 
the  other  hand,  the  guardian  has  no  more  right  to  the  labor 
and  services  of  his  ward  than  any  stranger.  Nor  are  guar- 
dians of  the  estate  vested  with  an  interest  precisely  like  that 
of  trustees ;  for  while  the  latter  may  sue  and  be  sued  in  their 
official  capacity,  suits  by  and  against  infants  are  brought  in 
the  name  of  the  ward  and  not  the  guardian.^ 

Guardians  in  socage  acquired  authority  as  guardians  of  the 
ward's  estate  ;  and  guardianship)  of  the  estate  drew  after  it, 
in  such  case,  guardianship  of  the  person ;  so  that  they  were 
guardians  of  both  person  and  estate.^  Testamentary  guar- 
dians under  the  statute  of  Charles  II.  acquire  authority 
through  the  father's  devise  to  them  of  the  "  custody  and  tu- 
ition "  of  his  children  ;  and  this  devise  of  the  person  carries 
with  it,  as  incident,  a  devise  of  the  estate ;  so  that  they  too 
(subject  to  statute  modifications)  are  guardians  of  both  per- 
son and  estate.*  But  chancery  guardians  are  not  always  in- 
vested with  such  powers  ;  for  the  court  will  make  such  orders 
as  are  needful  in  all  cases.  Chancer}^  sometimes  appoints  a 
guardian  of  the  person  only,  for  a  special  and  temporary  pur- 
pose.^ Where  a  suit  is  pending,  and  it  becomes  necessary  to 
appoint  a  guardian,  chancery  appoints  a  guardian  of  the 
person  only,  the  estate  being  under  the  direction  of  the  court. 

1  Snpra,ch.l.  <  Stat.   12  Car.   II.  c.   24,  §§  8,  9 ; 

2  See  infra,  Part  V.  c.  G.  Vaugh.  178. 

2  But  see  Bedell  v.  Constable,  *  Maci)hers.  Inf.  114;  Ex  parte  Be- 
Vaugh.  185.  Cher,  1  Bro.  C.  C  55(5 ;  Ex  parte  Wools- 

combe,  1  Madd.  213. 
29  449 


§  321  THE    DOMESTIC   RELATIONS.  fPART   IV. 

But  where  no  suit  is  pending,  and  proceedings  are  com- 
menced by  petition,  the  guardian  is  appointed  for  both  person 
and  estate.^  Probate  guardianship  is  subject,  in  great  part, 
to  local  legislation  ;  but  it  may  be  safely  asserted,  as  a  gen- 
eral principle,  that  all  probate  guardians  are  guardians  of 
both  person  and  estate,  and  that  the  court  cannot  commit 
guardianship  of  the  person  to  one  and  guardianship  of  the 
property  to  another.^ 

The  guardian  is  not  always  entitled  to  the  custody  of  the 
infant's  person  ;  but  chancery  will  exercise  its  discretion  for  the 
benefit  of  the  latter,  as  to  delivering  him  up  to  the  guardian 
or  permitting  him  to  remain  elsewhere,  and  as  to  the  persons 
who  are  to  have  access  to  him,  and  the  circumstances  attend- 
ing such  access,  and  generally  as  to  his  education.^  And  it 
is  the  policy  of  our  legislation  to  leave  the  child's  person  in 
his  parents'  keeping  so  far  as  possible.  But  the  guardian 
may  be  a  "  guardian  of  the  person  and  estate  *'  notwith- 
standing. 

§  321.  Whether  a  Guardian  is  a  Trustee.  —  In  discussing  the 
rights  and  duties  of  a  guardian,  this  question  next  meets  us 
at  the  outset :  Is  or  is  not  the  guardian's  office  substantially 
that  of  a  trustee  in  interest?  This  will  be  best  seen  by 
examining  the  different  kinds  of  guardians,  as  they  respect- 
ively arose. 

Guardianship  in  socage  arose  very  early  at  common  law, 
and  is  the  first  in  order.  These  guardians  were  considered 
as  trustees.  According  to  the  old  authorities,  the  guardian 
in  socage  had  not  a  bare  authority,  but  an  actual  estate  and 
interest  in  the  land,  though  not  to  his  own  use.*  Hence  he 
might  elect  whether  to  let  the  estate  or  occupy  it  for  the 
ward's  benefit.  He  was  considered  as  entitled  to  the  posses- 
sion of  the  ward's  property,  and  incapable  of  being  removed 
from  it  by  any  person.  In  other  words,  this  guardian  had 
the  legal,  but  not  the  beneficial,  interest.     Not  long  after  the 

1  Macphers.  Inf.  105;  2  Kent  Com.  ^  Macpbers.  Inf.  119;  Anon.,  2  Ves. 
229.  Sen.  374. 

2  See  Tenbrook  v.  M'Colm,  7  Halst.  *  Co  Litt.  90  a;  Plowd.  ch.  23.  See 
97.  next  chapter. 

450 


CHAP.  IV.]        NATURE  OF    GUARDIAN'S    OFFICE.  §  321 

statute  of  Charles  II.  clianceiy  was  called  upon  to  determine 
the  nature  of  testamentary  guardianship.  Lord  Macclesfield, 
in  the  case  of  Duke  of  Beaufort  v.  Berty}  stated  that  testa- 
mentary guardians  were  but  trustees  ;  that  the  statute  merel}' 
empowered  the  father  to  appoint  a  different  person  as  guar- 
dian and  to  continue  the  relation  beyond  the  age  of  fourteen 
and  until  the  ward  became  twentj^-one ;  and  that  both  socage 
and  testamentary  guardians  were  equally  trustees.  And  in 
the  important  case  of  Eyre  v.  Countess  of  Shaftesbury,^  this 
principle,  though  with  another  admitted  difference  as  to  suc- 
cession, was  again  affirmed.  This  general  rule  has  received 
judicial  sanction  in  England  quite  recently.^ 

Chancery  guardianship,  of  still  later  origin,  resembles  in 
its  nature  testamentary  guardianship.  The  same  principles 
are  constantly  asserted  in  regard  to  both.  In  either  case,  the 
guardian  has  a  vested  interest  in  his  ward's  estate,  may  bring 
actions  relative  thereto,  and  make  leases  during  the  minority 
of  the  infant.  He  has  in  all  respects  the  dominion  pro  tem- 
pore of  the  infant's  estate  and  possesses  more  than  a  naked 
authority.*  The  same  may  be  said  of  probate  guardianship 
in  this  country,  which,  under  statute  modification,  has  be- 
come, if  any  thing,  more  like  trusteeship  than  the  other 
kinds.^  And  in  Thompson  v.  Boardman^  the  analogies  of 
the  old  law  have  been  extended  to  the  case  of  a  spendthrift's 
guardian. 

It  is  often  difficult  to  say  what  in  strictness  is  a  trustee, 
since  every  trust  is  limited  by  the  instrument  which  creates 
it.  The  powers  of  a  guardian  differ  greatly  from  those  of 
an  executor  or  administrator.  But  so  far  as  guardianship  of 
the  estate  is  concerned,  a  guardian  is  in  fact  a  trustee  ;  for  he 
holds  the  legal  estate  for  the  benefit  of  another.  To  apply 
the  term  "  agent "  to  the  guardian's  office  seems  therefore 
harsh  and  unnatural,  whatever  may  be  the  ward's  position.'' 

1  1  P.  VVms.  703.  Isaacs  v.  Taylor,  3  Dana,  600 ;  Alex- 

2  2  P.  Wms.  i02.  ander  r.  Alexander,  8  Ala.  796;  Pep- 

3  Gilbert  v.  Scliwenck,  14  M.  &  W.  per  v.  Stone,  10  Vt.  427  ;  Lincoln  v. 
488  ;  s.  c.  9  Jur.  693.  Alexander,  52  Cal.  482. 

*  People  V.  Byron,  3  Johns.  Cas.  53.  6  i  vt.  370. 

5  See  Truss  v.   Old,  6   Rand.  556 ;         '  But  see  didum  of  Shaw,  C.  J.,  in 

451 


§  322  THE   DOMESTIC   RELATIONS.  [PART   IV. 

§  322.  Joint  Guardians.  —  Where  there  are  two  or  more  tes- 
tamentary guardians,  and  one  of  them  dies  or  is  removed,  the 
survivor  or  survivors  shall  continue.  The  very  nature  of  the 
trust  demands  it.^  In  England,  it  is  otherwise  with  joint 
guardians  by  chancery  appointment ;  for  if  one  dies  the 
office  determines.^  But  the  survivors  will  be  appointed  with- 
out a  reference,^  so  that  after  all  the  rule  is  only  formal.  In 
this  country,  the  more  reasonable  doctrine  prevails,  as  to 
both  chancery  and  probate  guardianship,  that  the  survivors 
siiall  continue  the  trust,  like  co-executors,  and  on  the  same 
principle.  This  was  declared  to  be  the  rule  as  to  joint  chan- 
cery guardians  in  a  leading  New  York  case.*  And  a  Ver- 
mont court  applies  it  likewise  to  probate  guardians.^  The 
statutes  enacted  in  many  of  the  States  remove  all  further 
doubt  on  the  subject. 

Of  two  or  more  persons  appointed  joint  guardians  under  a 
will,  one  may  qualify  without  the  other  ;®  and  where  one  de- 
clines to  act,  all  the  rights  and  powers  created  by  the  appoint- 
ment under  the  will  may  devolve  upon  the  other.'^  But 
while  a  joint  guardian  who  had  once  declined  the  trust  has 
no  further  right  to  be  appointed,  he  may  yet  be  selected  in 
preference  to  others  to  fill  a  vacancy.  Thus  it  has  been  held 
that  where  three  testamentary  guardians,  one  of  whom  was 
the  mother,  were  named  by  the  father  in  his  will,  and  the 
mother  became  sole  guardian  by  the  refusal  of  the  others  to 
act  with  her,  they  were  properly  selected  by  the  court,  after 
the  mother's  death,  on  their  own  application,  in  preference 
to  the  person  nominated  in  her  will.^ 

On  the  principle  that  guardians  are  trustees,  it  is  held  that 

Manson  v.  Felton,  1-3  Pick.  206  ;  Muller         i  See  Bac.  Abr.  Guardian  (A). 
r.Benner,  69111. 108.  And  Soule,  J.,  ob-  2  Bradshawr.Bradshaw,lRuss.528. 

serves  in  Rollins  y.  Marsh,  128  Mass.  116,  ^  jjall  v.  Jones,  2  Sim.  41. 

that  guardians  of  minor   spendthrifts  *  People  v.  Byron,  Z  Johns.  Cas.  .53. 

or  insane  persons,  have  only  a  naked  ^  Pepper  v.  Stone,  10  Vt.  427.     See 

power  not   coupled  with  an  interest.  also  remarks  of  Chancellor  Sanford,  in 

As  the  rights  and  duties  of  such  guar-  Kirby  y.  Turner,  Hopk.  309,  as  to  the 

dians,  probate  guardians  included,  de-  nature  of  joint  guardianship. 
pend    so   greatly  upon  local  statutes,  *>  Kevan  v.  Waller,  11  Leigh,  414. 

local  jurisdictions  may  be  found  to  dif-  7  Matter    of    Reynolds,    18    N.    Y. 

fer  as  to  the  nature  of  the  guardian's  Supr.  41. 
office,  which,  after  all,  is  sui  generis.  ^  Johnston's  Case,  2  Jones  &Lat.  222. 

452 


CHAP.  IV.]        NATURE   OF   GUARDIAN 's   OFFICE.  §  323 

joint  guardians  may  sue  together  on  account  of  any  joint 
transaction  founded  on  their  relation  to  the  ward,  even  after 
the  relation  ceases.^  Also  that  the  receipt  of  one  is  the  re- 
ceipt of  all.2  Also  that  one  can  maintain  trespass  against 
the  other  for  forcibly  removing  the  child  against  his  wishes  ; 
as  one  of  two  joint  trustees  cannot  act  in  defiance  of  the 
other.^  And  where  one  guardian  consents  to  his  co-guardian's 
misapplication  of  funds,  he  is  liable.^  The  fact  that  one 
joint  guardian  is  dead  will  not  prevent  the  co-guardian's  prior 
accounts  from  being  opened  on  a  final  settlement  in  court.^ 
Guardians,  like  other  trustees,  —  executors  and  administra- 
tors excepted,  —  may  portion  out  the  management  of  the 
property  to  suit  their  respective  tastes  and  qualifications, 
while  neither  parts  irrevocably  with  the  control  of  the  whole  ; 
and  in  such  case  each  is  chargeable  with  no  more  than 
what  he  received,  unless  unwarrantable  negligence  in  super- 
intending the  other's  acts  can  be  shown.^  And  the  discharge 
of  one  who  has  received  no  part  of  the  estate  relieves  him 
from  liability.''  On  the  other  hand,  it  is  presumed  that  the 
survivor  of  joint  guardians  received  the  whole  estate,  in 
absence  of  proof  to  the  contrary.^ 

§  323.  Judicial  Control  of  the  Ward's  Property.  —  In  Eng- 
lish practice,  the  Court  of  Chancery  holds  the  ward's  prop- 
erty within  its  grasp  with  a  tightness  unknown  to  American 
tribunals.  The  regular  course  is  to  get  in  all  the  money  due 
the  infant,  and  to  invest  it  in  the  public  funds.  A  receiver 
is,  if  necessary,  appointed  to  facilitate  collections,  and  gen- 
erally the  same  person  is  made  a  permanent  receiver  of  the 
ward's  real  estate,  to  collect  all  rents.  Where  there  is  au 
executor  he  will  not  be  interfered  with,  except  under  strong  cir- 
cumstances of  suspicion,  but  an  administrator  is  treated  with 
less  consideration.^     Even  executors  who  are  also  testamen- 

1  Shearman  v.  Akins,  4  Pick.  283.  «  Jones's  Appeal,  8  Watts  &  S.  143. 

2  Alston  V.  Munford,  1  Brock.  266.  ^  Hooker  v.   Woods,  33  Penn.    St. 
8  Gilbert  v.  Schwenck,  14  M.  &  W.     466. 

488.  8  Graham   v.   Davidson.  2  Dev.  & 

«  Pirn  V.  Downing,  11  S.  &  R.  66.     Bat  Eq.  155. 
See  Clark's  Appeal,  18  Penn.  St.  175.  9  Macphers.  Inf.  268,  and  cases  cited. 


5  Blake  v.  Pegram,  101  Mass.  592. 


453 


§  324  THE  DOMESTIC   RELATIONS.  [PAET  IV. 

tary  guardians  must  bring  their  funds  into  court  after  set- 
tling up  the  estate  of  their  testator.^  Chancery,  thus  manag- 
ing actively  the  ward's  property,  makes  its  own  scheme  for 
maintenance,  and  allows  the  guardian  a  certain  fixed  income 
accordingly.^ 

Probate  guardianship  in  this  country  is  quite  different. 
Schemes  of  maintenance  are  seldom  heard  of.  Nor  are  re- 
ceivers appointed.  The  guardian  usually  collects  his  ward's 
dues,  whether  from  the  executor  of  the  parent  or  others,  and 
manages  the  property  on  his  own  responsibility,  with  little 
judicial  interference.  He  regulates  at  discretion  the  sura 
proper  for  annual  expenditure,  and  changes  the  rate  when 
expedient.  Of  course  he  is  held  acountable,  on  legal  prin- 
ciples much  the  same  as  those  of  the  English  chancery ;  but 
he  seldom  applies  to  the  court  for  directions,  unless  some 
perplexity  arises,  or  it  becomes  expedient  to  sell  real  estate, 
or  when  the  ward  cannot  be  supported  without  breaking  in 
upon  the  principal  fund. 

§  324.  Guardianship  and  other  Trusts  blended.  —  The  same 
person  is  frequently  executor  under  the  parent's  will,  and 
also  guardian  of  the  minor  children.  Hence  the  question 
will  sometimes  arise  whether  he  holds  the  fund  in  the  one 
or  the  other  capacity.  It  is  clear  that  where  one  is  both 
guardian  and  executor,  he  cannot  be  sued  in  both  capacities, 
nor  are  both  sets  of  sureties  liable. ^  He  is  in  the  first 
instance  liable  as  executor ;  and  in  general,  to  render  him 
liable  as  guardian,  there  should  be  some  distinct  act  of  trans- 
fer. His  plain  duty  is  to  keep  the  trusts  distinct  and  not 
blend  them.  In  the  former  case,  his  accounts  rendered  will 
show  the  transfer  of  the  legacy  or  distributive  share  from  his 
account  as  executor  to  his  account  as  guardian  ;  and  thereby 
his  liability  as  guardian  will  become  fixed.*  But  in  the  latter 
case,  or  if  no  clear  evidence  appears  elsewhere  of  an  actual 

1  Macphers.  Inf.  118;  Blake  v.  Burton  t:  Tnnnell,  4  HRrring.  (Del.) 
Blake,  2  Sch.  &  Lef.  26.  424,  cmtra,   Conkey   v.  Dickinson,   13 

2  Macphers.  Inf.  21.S  et  seq.  Met.  51 ;  Stiilman  v.  Young,  16  111.  318 ; 
8  Wren  v.  Gayden,  1  How.  (Miss.)     Foteaux  v.  Lepage,  6  Clarke  (Iowa), 

365.  123;  Scott's  Case,  36  Vt.  297. 

*  Alston  V.  Munford,  1  Brock.  266; 

454 


CHAP.  IV.]        NATfTKE   OF   GUAKDIAN's    OFFICE.  §  324 

transfer,  can  it  be  presumed  ?  The  better  opinion  is  that, 
after  the  time  limited  by  law  for  the  settlement  of  the  estate 
has  elapsed,  and  there  is  no  evidence  of  intent  to  hold  longer 
us  executor,  he  shall  be  presumed  a  guaidian  ;  on  the  prin- 
ciple that  what  the  law  enjoins  upon  him  to  do  shall  be  con- 
sidered as  done.^  And  certainly  very  slight  evidence  would 
confirm  any  possible  doubt ;  such  as  the  division  of  the 
parent's  estate  among  other  heirs,  the  payment  of  legacies, 
or  where  he  has  placed  some  of  the  chattels  on  the  ward's 
furm,2  But  the  rule  may  be  otherwise  with  joint  executors 
or  administrators  ;^  and  we  need  hardly  add  that  this  doctrine 
applies  in  strictness  only  to  personal  assets  which  pass  through 
administration  ;  since  real  estate,  ordinarily,  goes  at  once  to 
the  heir.  Acts,  too,  inconsistent  with  the  purpose  of  holding 
as  guardian,  and  consistent  with  that  of  continuing  adminis- 
trator or  executor,  should  not  readily  be  construed  to  a  ward's 
prejudice  ;  but  rather,  if  need  be,  serve  to  repel  the  presump- 
tion of  guardianship,  and  in  any  event  to  aid  the  beneficiary 
who  seeks  redress.* 

If  a  legacy  is  given  under  a  will  to  an  infant,  which  he  is 
not  to  receive  unless  he  attain  full  age,  it  would  appear  tliat 
the  simpler  course  is  for  the  executor  to  retain  the  fund  dur- 
ing the  infant's  minority;  yet  it  is  held  that  a  probate 
guardian  may,  at  the  court's  discretion,  be  appointed  to 
receive  the  fund  and  hold  it  subject  to  the  restriction  con- 
tained in  the  will.^ 

A  guardian  cannot  blend  distinct  trusts  of  guardianship  by 
appointment.  Thus,  where  a  person  was  appointed  guardian 
of  an  infant  who  became  insane  shortly  before  reaching  his 


1  Walking  v.  State,  4  Gill  &  Johns,  modern  inclination  is  to  let  the  ward 
220 ;  Karr  v.  Karr,  6  Dana,  3 :  Crosby  sue  both  sets  of  sureties,  or  eitlier, 
V.  Crosb^',  1  S.  C.  N.  s.  337  ;  Wilson  v.  leaving  them  to  adjust  their  equities 
Wilson,  17  Ohio  St.  150  ;  Townsend  v.  among  themselves.  Harris  v.  Harrison, 
Tallant,  33  Cal.  45;  i?e  Wood,  71  Mo.  78  N.  C.  202.  And  see  Coleman  v. 
623;  Weaver  y.  Thornton,  03  Ga.  655.  Smith,  14  S    C.  511.     So,  too,  where 

2  Johnson  ;'.  Johnson,  2  Hill  Ch.  a  guardian  subsequently  becomes  trus- 
277;  Drane  v.  Bayliss,  1  Humph.  174.  tee.    State  v.  Jones,  08  N.  C.  554;  Per- 

3  Watklns  v.  State,  4  Gill  &  Johns,  ry  v.  Carmichael,  95  111.  510. 
220;  Coleman  v.  Smith,  14  S.  C.  511.  5  Gunther  v.  State,  31  Md.  21. 

*  In  doubtful  cases  of  this  kind,  the 

4r.5 


§  326  THE  DOMESTIC  RELATIONS.  [PART  IV. 

majority,  and  the  same  guardian  continued  to  act,  styling 
himself  guardian  of  "  A.  B.,  an  idiot,"  it  was  held  that  his 
trust  properly  expired  with  the  infancy  of  the  minor.i  Nor 
does  it  matter  that  the  probate  court  recognizes  a  continua- 
tion of  the  trust  by  passing  his  accounts  ;  for  an  actual  ap- 
pointment, after  the  regular  form,  is  always  essential  to  a 
guardian's  authority .^ 

§  325.  Administration  durante  Minore  ^tate.  —  Where  the 
person  designated  as  executor  of  a  will  is  under  age,  it 
becomes  necessary  to  appoint  an  administrator  during  min- 
ority, which  appointment  was  at  common  law  denominated 
durante  minore  cetatefi  So  Avhen  the  next  of  kin  is  under  a^e, 
the  English  practice  in  such  cases  is  to  appoint  the  infant's 
guardian,  unless  there  be  some  other  next  of  kin  competent  to 
act ;  though  the  rule  is  not  invariable.^  And  in  the  English 
case  of  John  v.  Bradbury,  decided  as  late  as  1866,  it  is  affirmed 
that  the  guardian  of  an  infant  sole  next  of  kin  shall  not  only 
administer  in  preference  to  creditors,  but  shall  be  exempted 
from  security,  except  in  very  strong  cases,  notwithstanding 
the  creditors  request  it.^  So  he  is  preferred  to  the  husband 
of  a  married  woman  who  died  after  a  judicial  separation.^ 
But  in  this  country,  while  there  are  statutes  in  some  States 
favoring  similar  doctrines,  in  others  the  court  has  full  dis- 
cretion in  selecting  a  substitute  for  the  child."  Such  admin- 
istrator has  for  the  time  being  all  the  powers  of  a  general 
administrator,  but  his  term  of  office  is  restricted  to  the 
infant's  minority.^ 

§  326.  Quasi  Guardianship  v^here  no  Regular  Appointment. 
—  A  quasi  guardianship  often  arises  at  law  where  there  has 
been  no  regular  appointment,  or  an  appointment  without 
jurisdiction  or  some  intermeddling.     The  general  j)rinciple 


1  Coon  V.  Cook,  6  Ind.  268.  6  Goods  of  Stephenson,  L.  R.  1  P. 

2  But  see  King  v.  Bell,  36  Ohio  St.  &  D.  287.     But  the  hii.sbiind  usually 
460.  administers.     See  supra,  §  196. 

3  1  Wms.  Ex'rs,  419,  420 :  2  Redf.         1  1  Wms.  Ex^rs,  419 ;  2  Kedf.  Wills, 
Wills,  92,  93.  94,  and  cases  cited ;  Mass.  Gen.  Stats. 

*  Ih.  c.  94. 

5  John  V.  Bradbury,  L.  R.  1  P.  &  D.  8  1  Wms.  Ex'rs,  428,  and  notes ;  2 

245.  Redf.  Wills,  94,  95. 

456 


CHAP.  IV.]        NATURE   OF   GUARDIAN'S    OFFICE.  §  328 

thus  recognized  is  that  any  person  who  takes  possession  of 
an  infant's  property  takes  it  in  trust  for  the  infant.  Hence 
courts  of  equity  will  always  protect  the  helpless  in  such  cases 
by  holding  the  person  who  acts  as  guardian  strictly  account- 
able. The  father  may  thus  be  a  quasi  guardian, ^  So  may  a 
stepfather.2  Or  one  whose  appointment  as  guardian  was 
irregular  or  nuU.^  But  not  an  executor  or  administrator  in 
rightful  possession  of  the  infant's  property ;  for  he  holds  in 
a  different  capacity.*  A  son  who  takes  charge  of  an  incom- 
petent father's  estate,  with  the  latter's  acquiescence,  may 
make  his  father  an  equitable  ward.^  Chancery  has  full  juris- 
diction over  the  transactions  of  all  persons  standing  in  loco 
parentis.^ 

On  the  same  principle,  one  regularly  appointed  guardian  of 
an  infant  is  held  responsible  for  acts  committed  before  quali- 
fying as  such  by  giving  bonds.'^  And  although  his  authority 
ceases  when  the  ward  attains  majority,  he  continues  person- 
ally responsible  so  long  as  his  possession  and  control  of  the 
property  continues.^ 

§  327.  Conflict  of  Laws  as  to  Guardianship.  —  The  guardian's 
authority  is  limited  to  the  jurisdiction  which  appoints  him, 
and  does  not  extend  to  foreign  countries,  unless  permitted 
by  foreign  laws.  Every  nation  is  sovereign  within  its  own 
borders,  but  powerless  beyond  them.  The  rights  of  foreio-n 
guardians  have  been  to  some  extent  admitted,  however,  on 
the  principle  of  comity.^  These  rights  may  be  considered, 
first,  as  to  the  person  of  the  ward  ;  second,  as  to  his  estate. 

§  328.  Conflict  as  to  Ward's  Person.  —  First,  as  to  the  ward's 
person.  Many  writers  on  public  law  claim  that  the  guardian's 
authority  extends  everywhere.    Others  again  deny  that  it  ex- 

1  Pennington  u.  Fowler,  8  Halst.  Ch.  also  Munroe  v.  Phillips,  64  Geo.  32; 
343 ;  Alston  v.  Alston,  34  Ala.  15.  Sherman  i'.  Wright,  40  N.  Y.  227. 

2  Espey  V.  Lake,  15  E.  L.  &  Eq.  579.         6  Espey  v.  Lake,   15  E.  L.  &  Eq. 

3  Crooks  V.  Turpin,  1  B.  Monr.  185;  579. 

Earle  v.  Crum,  42  Miss.  165  ;  McClure  ^  Magruder  v.  Darnall,  6  Gill,  2G9. 

V.  Commonwealth,  80  Penn.   St.   167  ;  8  Mellish  v.  Hellish,  1  Sim.  &  Stu. 

State  V.  Lewis,  73  N.  C.  138.  138 ;  Armstrong  v.  AValkup,  12  Gratt. 

4  Bibb   V.  McKinley,  9   Port.    636;  608. 

Minfee  v.  Ball,  2  Eng.  520.  9  See    Story  Confl.  Laws,   §§  492- 

6  Jacox  V.  Jacox,  40  Mich.  473.     See    529. 

457 


§  329  THE   DOMESTIC   RELATIONS.  [PART   IV. 

tends  beyond  the  jurisdiction  which  appoints.^  In  England, 
the  paternal  authority  is  recognized,  even  in  aliens ;  but  if  an 
infant  has  a  guardian  appointed  by  any  other  authority  out  of 
the  jurisdiction,  the  appointment  fails  as  soon  as  the  infant 
comes  to  England,  and  the  court  of  chancery  will  thereupon 
appoint  a  guardian  ou  petition.^  But  in  a  very  recent  case 
liberal  favor  was  shown  toward  the  foreign  guardian  of  wards 
domiciled  abroad.  He  had  sent  them  to  England  to  be  educated, 
and  wished  to  remove  them  to  their  own  country  in  order  to 
complete  their  education.  The  court  refused  to  interfere  with 
their  removal,  and  allowed  the  exclusive  custod}^  to  the  foreign 
guardian  ;  at  the  same  time,  however,  refusing  to  discharge  an 
order  appointing  English  guardians.^ 

In  this  country,  the  rights  and  powers  of  guardians  over  the 
ward's  person  are  considered  strictly  local,  even  as  between 
different  States,*  though  the  paternal  right  would  probably  be 
recognized  as  in  England.-^  But  in  Massachusetts,  a  few  years 
ago,  the  custody  of  a  child  was  awarded  to  a  foreign  guardian, 
in  preference  to  one  appointed  ^^  ithin  the  jurisdiction ;  the 
court  observing  that  while  the  former  had  no  absolute  right 
to  the  child,  his  office  would  be  deemed  an  important  element 
in  determining  to  whom  custody  should  be  given.^ 

§  329.  Conflict  as  to  Ward's  Property.  —  Second^  as  to  the 
ward's  property.  A  distinction  has  been  made  between  mov- 
ables and  immovables.  As  to  immovable  property,  such  as 
real  estate,  it  is  almost  universally  admitted  that  the  law  rei 
sitce  shall  govern.'^     But  writers  do  not  agree  as  to  movable 

1  See  Story  Confl.  Laws,  §§  495-  for  the  time  being  where  the  ward  bona 
497,  and  authorities  cited.  fde.  resides  in   tlie  jurisdiction,  tliougli 

2  Macpliers.  Inf.  577 ;  Ex  parle^^aX-  not  perhaps  domiciled  there.  Supra, 
kins,  2  Ves.  470.  §  303.      Such   appointment    may   not 

s'xugenti'.  Vetzera.L.  R.  2Eq.704.  clothe   the   guardian   with  extra-terri- 

See  27  E.  L.  &  Eq.  451.  torial  authority,  yet  it  is  not  void. 

■*  Story  Confl.  Laws,  §  490  ;  Morrell  ^  See  Townsend  v.  Kendall,  4  Minn. 

V.  Dickey.  1  Johns.  Cii.  153;  Kraft  v.  412. 

Wickey,  4  Gill  &  Johns.  332;  Burnet  ^  Woodworth  r.  Spring,  4  Allen,  321. 

V.  Burnet,  12  B.   Monr.  .323;  Boyd  v.  7  Story    Confl.    Laws,    §§   500-502. 

Glass,34Ga.  253;  Whart.  Confl.  Laws,  And   see  post,  c.l.     As  between  West 

§§261-264;  Rice's  Case,  42  Mich.  528.  Virginia   and  Virginia,  see  Rinker  v. 

We  have   seen   that   the   courts  of  a  Streit,  33  Gratt.  663. 
State  or  country  will  take  jurisdiction 

458 


CHAP.  IV.]         NATUKE   OF    GUAKDIAN's   OFFICE.  §  329 

property,  such  as  goods  and  personal  chattels,  whether  the 
law  of  the  domicile  shall  prevail  over  that  of  the  situation. 
Judge  Story  considered  the  weight  of  foreign  authority  in 
this  respect,  in  favor  of  admitting  the  guardian's  right  to  pre- 
vail everywhere  to  the  same  extent  as  they  are  acknowledged 
by  the  law  of  the  domicile.^  And  this  seems  to  be  the  Scotch 
doctrine.^  But  according  to  the  doctrine  of  the  common  law, 
now  fully  established  both  in  England  and  America,  the 
rights  of  a  guardian  over  all  property  whatsoever  aie  strictly 
territorial,  and  are  recognized  as  having  no  influence  upon 
such  property  in  other  countries  where  different  systems  of 
jurisprudence  are  established.  No  foreign  guardian  can,  by 
virtue  of  his  office,  exercise  his  functions  in  another  country 
or  State,  without  taking  out  other  letters  of  guardianship  or 
otherwise  conforming  to  the  local  law ;  while  on  the  other 
hand,  local  courts  consider  their  own  authority  competent 
within  the  jurisdiction,  if  the  ward's  property  be  located 
there.     Such  is  the  rule  in  both  countries.^ 

But  the  rigor  of  this  rule  is  sometimes  abated.  In  Eng- 
land, personal  property  will,  under  certain  circumstances,  be 
paid  to  an  owner  who,  if  domiciled  and  resident  in  that  coun- 
try, would  not  be  allowed  to  receive  it.*  So  administration 
durante  minore  cetate  has  been  granted  to  a  foreign  guardian.^ 
In  this  country  there  are  local  statutes  which  permit  non- 
•  resident  guardians  to  sue  on  compliance  with  certain  formali- 
ties, or  even  without  them.^  But  otherwise  they  cannot  bring 
actions  of  any  sort.'^     And  this  seems  to  be  the  English  rule 

'  Story  Confl.  Laws.  §  503;  Scliouler  Hines  v.  State,  10  S.  &  M.  529 ;  Sims  v. 
Pers.  Prop.  347-385;  Wharton  Confl.  Renwick,  25  Geo.  58;  Grist  v.  Fore- 
Laws,  §§  265,  266.  hand,  36  Miss.  69 ;  Martin  v.  McDonald, 

2  Story,  ih.  §  503 ;  Eraser  Parent  &  14  B.  Monr.  544 ;  Carhsle  v.  Tuttle,  80 
Child,  604.  Ala.  613  ;  Warren  v.  Hofer,  13  Ind.  167 ; 

3  Story  Confl.  Laws,  §  504 ;  supra,  Re  Fitch,  3  Redf.  457 ;  Shook  v.  State, 
§  303 ;  Rice's  Case,  42  Mich.  528  ;  Wei-  53  Ind.  403. 

ler  V.  Suggett,  3  Redf.  249;    Hoyt  v.         ^  Morrell  v.  Dickey,  1  Johns.  Ch 

Sprague,  103  U.  S.  Supr.  613  ;  Leonard  153 ;  Kraft  v.  Wickey',  4  Gill  &  Johns 

V.  Putnam,  51  N.  H.  247.  322;  Rogers  v.  McLean,  31  Barb.  804, 

*  Macphers.    Inf.    577  ;    Goods    of  This  is  the  rule  too  in  Louisiana.    Sue 

Countess  Da  Cunha,  1  Hag.  237.  cession   of    Shaw,    18  La.   Ann.    265 

5  Goods  of  Sartoris,  1  Curteis,  910.  Succession  of  Stephens,   19  La.  Ann 

6  Ex  parte   Heard,  2  Hill  Ch.  64 ;  499. 

459 


§  C30  THE   DOMESTIC   RELATIONS.  [PAET  IV. 

likewise.^  Nor  will  the  courts  of  one  State  enforce  the  obli- 
gation of  a  probate  guardian's  official  bond  with  sureties  given 
in  another  State.^  But  a  court  having  general  chancery  juris- 
diction over  matters  of  guardianship  may,  it  appears,  in  the 
exercise  of  sound  discretion,  and  upon  principles  of  comity, 
equity,  and  justice,  order  assets  of  the  ward  in  the  possession 
of  a  guardian  resident  within  its  jurisdiction  to  be  delivered 
to  the  guardian  abroad.^  While  courts  of  equity  will  permit 
property  to  pass  to  the  foreign  guardian,  in  pursuance  of  law, 
it  seems  that  they  will  generally  exercise  discretion,  and  in 
some  cases  require  good  securitj',''  in  others,  direct  the  pay- 
ment of  a  regular  allowance,^  and  in  others,  refuse  payment 
altogether ;  ^  the  welfare  of  the  infant  being  always  con- 
sidered in  such  cases. 

The  principles  applicable  to  non-resident  guardians  in  this 
country  appear  in  many  respects  similar  to  those  in  case  of 
foreisfn  executors  and  administrators,  and  the  rules  we  have 
stated  might  be  subjected  to  modification  by  the  mutual 
treaty  stipulations  of  two  independent  governments^ 

§  330.  Constitutional  Questions  relating  to  Guardianship.  — 
As  each  legislature  in  tliis  country  derives  its  authority  from 

1  Story  considers  it  doubtful.  Beat-  petition  for  appointment  of  guardian 
tie  V.  Joiinston,  1  Phillips  Ch.  17  ;  10  ad  litem  without  ancillary  letters,  see 
CI.  &  Fin.  42;  ro?i^-a,  Morrison's  Case,  Freund  v.  Washburn,  17  Hun,  543; 
cited  in  4  T.  R.  140,  and  1  H.  Bl.  677,  Shook  v.  State,  53  Ind.  403.  As  to 
682.  a  foreign  guardian's  right  to  transfer 

2  Probate  Court  v.  Hibbard,  44  Vt.  stock,  see  Ross  v.  Southwestern  R.,  53 
597.  Ga.  514.     Local  statutes  are  found  to 

8  Earl  V.  Dresser,  30  Ind.  11.  regulate  this  whole  subject. 

4  Caseof  Andrews' Heirs,  3  Humph.  "^  Commonwealth  f.  Rhoads,  37  Penn. 

592  ;  Martin  v.  McDonald.  14  B.  Monr.  St.  60.     And  see  Pratt  v.  Wright,  13 

544;  Re  Fitch,  3  Redf.  457.  Gratt.  175.     The  guardian  of  a  minor 

s  McNeely  v.  Jamison,  2  Jones  Eq.  who  receives  property  of  his  ward  in  a 

186.      And   see   Ex  parte   Dawson,   3  foreign  country  or  State  must  account 

Bradf.  130  ;  M'Liskey  v.  Reid,  4  Bradf.  for  it,  unless  he  can  show  that  he  had 

334.  accounted  for  it  abroad.     Secchi's  Es- 

6  See  2  Story  Eq.  Juris.  §  1354  b;  tate,  Myrick's  Prob.  225.  As  to  the 
Stephens  v.  James,  1  M.  &  K.  G27.  Let-  proper  course  for  care  and  transfer  of 
ters  are  thus  granted  in  the  State  the  ward's  money  when  a  ward  re- 
having  property,  ancillary  to  the  guar-  moves  from  the  jurisdiction,  and  a  new 
dianship  in  child's  domicile  or  res-  guardian  is  appointed  in  the  State  of 
idence.  Metcalf  v.  Lowther,  56  Ala.  his  new  domicile,  see  Suavely  v.  Hark- 
312 ;  Marts  v.  Brown,  56  Ind.  386.  rader,  29  Gratt.  112. 
As    to    right    of  foreign   guardian    to 

4G0 


CHAP.  IV.]        NATUliE   OF   GUARDIAN'S   OFFICE.  §  330 

a  written  constitution,  questions  sometimes  arise  in  our  courts 
as  to  the  validity  of  certain  statutes,  wliich  in  Great  Britain 
are  of  no  importance,  since  there  an  act  of  Parliament  is  the 
supreme  law.  Thus  it  is  not  uncommon  for  our  legislatures 
to  authorize  or  confirm  the  sale  of  lands  held  by  guardians 
and  other  trustees,  by  special  statutes  ;  and  such  statutes  have 
been  attacked  either  as  an  interference  with  the  property  rights 
of  infants  and  their  heirs,  or  as  an  usurpation  of  judicial  func- 
tions.i  Such  acts  are,  however,  constitutional,  unless  expressly 
forbidden,  according  to  the  best  authorities,  where,  at  least  the 
object  is  simply  to  provide  for  a  change  of  investment  for  the 
beneficiary,  and  not  to  divest  the  latter  of  property  rights.^ 
But  in  a  New  Jersey  case,  it  was  intimated  by  the  Chancel- 
lor that,  if  fraud  or  sinister  motives  on  the  guardian's  part 
were  shown,  the  special  act  might  be  judicially  avoided."  An 
act  of  the  legislature  may  authorize  a  certain  guardian  to  sell 
the  real  estate  of  his  infant  ward,  subject  to  the  approval  of 
the  sale  by  the  probate  court.'^  It  is  held  that  the  legislature 
may  enable  a  foreign  guardian  to  sell  lands  within  the  State.^ 
So  a  general  law  may  be  enacted  for  enabling  guardians  and 
other  trustees  to  enter  into  agreements  as  to  tlie  disposition 
of  property  held  by  them,  consistently  with  constitutional 
provisions  which  protect  the  rights  of  individuals  ;  notwith- 
standing the  rights  of  persons  remotely  interested  in  the 
estate,  who  are  either  not  in  existence  or  only  contingently 
concerned,  may  be  thereby  compromised  without  their  assent.^ 
Doubtless  the  wiser  policy  of  the.  legislature  is  to  refer  all 
cases  of  this  kind  to  the  courts  under  general  laws ;  and  thus 
do  some  State  constitutions  expressly  require.'^ 

1  See  Davison  v.  Johonnot,  7  Met.  *  Brenliam  v.  Davidson,  51  Cal.  352. 
388,  for  a  full  discussion  of  the  question.  5  Boon    v.    Bowers,    30   Miss.   246; 

2  Clarke  v.  Van  Surlay,  15  \yend.  Nelson  i'.  Lee,  10  B.  Monr.  495. 
436 ;  Cocliran  i-.  Van  Surlay,  20  Wend.  6  Clarke  v.  Cordis,  4  Allen,  466. 
365  ;  Davison  v.  Joliniiot,  7  ]\Iet.  388 ;  '  Per  curiam,  in  Brenham  v.  David- 
Snowhill  V.  Snowhill,  2  Green  Ch.  20 ;  son,  51  Cal.  352.  An  act  of  the  legis- 
Brenham  v.  Davidson,  51  Cal.  352;  lature  cannot  authorize  a  stranger,  apart 
Hoyt  V.  Sprague,  103  U.  S.  Supr.  613.  from  guardianship,  to  sell  an  infant's 
But  see  Opinion  of  Justices,  cited  in  4  land  or  other  property  as  an  individual, 
N.  H.  572  ;  Jones  v.  Perry,  10  Yerg.  59.  and  so  confer  a  good  title,  and  certainly 

3  Snowhill    1-.    Snowhill,    2    Green  no   act  will   he  readily  interpreted  to 
Ch.  20.  mean  this.     The  sale  is  supposed  to  be 

461 


§  332  THE  DOMESTIC   RELATIONS.  [PART  IV. 


CHAPTER   V. 

rights   and   duties   op  guardians   concerning  the 
ward's  person. 

§331.  Division  of  this  Chapter.  —  As  the  guardian  of  a 
minor  stands  in  the  place  of  a  parent,  sub  modo,  his  rights 
and  duties,  so  far  as  concerns  the  person  of  his  ward,  are  to 
be  considered  correspondingly  with  those  of  a  parent.  His 
rights  relate  chiefly  to  the  ward's  personal  custody.  His  du- 
ties are  those  of  protection,  education,  and  maintenance. 
These  rights  and  duties  will  be  considered  at  length  in  the 
present  chapter. 

§  332.  Guardian's  Right  of  Custody.  —  Guardianship,  gene- 
rally, carries  with  it  the  custody  of  the  ward's  person.  This 
is  especially  true  where  the  ward's  parents  are  both  dead 
or  incompetent  to  act,  for  natural  guardians  have  the  prior 
claim  to  custody  while  alive.  Some  one  must  exercise  the 
right  of  custody  of  the  infant  when  the  natural  protector  is 
wanting ;  and  who  is  more  suitable  than  the  officer  invested 
by  law  with  the  responsibility  of  paying  for  the  child's  edu- 
cation and  maintenance  ?  Hence  the  guardian's  title  is,  in 
this  respect,  higher  than  that  of  relatives  and  friends  ;  and 
he  may  insist  upon  taking  the  child  from  the  control  of  a 
stepmother  or  grandmother,  or  from  any  person  to  whom  the 
father  has  informally  committed  the  care.^  For  such  consid- 
erations, however  material  in  determining  the  selection  of  a 
guardian,    become   superseded   by    the    actual    appointment. 

authorized  as  of  one  in  tlie  guardian  tution  of  that  State  no  probate  guar- 

or  trust  capacity,  and  to  require  or  to  dian  could  be  appointed  over  a  child 

respect  Ins  due  appointment.     Paty  v.  whose  fatlier  was  living. 

Smith,  50  Cal.  15.3;  Lincoln   v.  Alex-  i  Coltman  v.  Hail,  .31  Me.  196;  Bou- 

ander,  52  Cal.  382.      See  further.  Ex  nell  v.  Berryhill,  2  Cart.  613 ;  Johns  v. 

parte    Atkinson,   40   Miss.    17,   to    the  Emmert,  62  Ind.  533. 

effect  that   under   tiie   former  consti- 

452 


CHAP,  v.]      EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  332 

And  it  has  been  said  that  the  decision  of  the  court  as  to  the 
guardian's  appointment  is  a  final  decision  as  to  the  care  and 
custody  of  the  ward.^ 

Bat  the  custody  of  infants,  as  we  have  seen,  is  a  subject 
within  the  free  discretion  of  courts  of  equity ;  and  where  the 
interests  of  the  ward  require  it,  the  care  of  his  person  will 
be  committed  to  others.^  Chancery  jurisdiction  applies  in 
this  respect  to  testamentary  and  chancery  guardianship.  The 
good  of  the  child  is  superior  to  all  other  considerations.  Of 
this  the  court  will  judge  in  each  case  by  the  circumstances, 
and  make  orders  accordingly,  both  as  to  actual  custody  and 
as  to  the  persons  who  may  have  access  to  the  child.  In  de- 
termining where  the  infant  shall  reside,  the  infant's  inclina- 
tion shall  have  considerable  weight,  if  he  be  of  sufficient 
age;  but  not,  it  would  appear,  during  the  period  of  nurture.^ 

The  right  of  chancery  courts  to  regulate  the  personal  cus- 
tody of  infants  subject  to  probate  guardianship  has  also  been 
asserted  in  this  country.  This  principle  determined  the  de- 
cision of  the  court  in  the  New  York  case  of  People  v.  Wilcox} 
Here  it  appeared  that  the  parents  had  separated,  the  father 
being  a  man  of  intemperate  habits.  The  child,  by  the  father's 
permission,  was  subsequently  brought  up  at  the  house  of  his 
paternal  grandparents.  Upon  the  father's  death,  the  grand- 
parents secured  letters  of  guardianship,  without  notice  to  the 
mother,  who  was  resident  elsewhere.  She  afterwards  came 
forward  and  claimed  control  of  her  child,  then  only  nine  years 
old.  It  appeared  that  the  child  was  happy  and  well  provided 
for  at  the  home  of  his  grandparents.  But  it  also  appeared 
that  the  mother  was  a  person  of  good  character,  and  that  no 
sufficient  reason  existed  for  depriving  her  of  her  natural  off- 
spring. The  child  was  therefore  taken  from  the  legal  guar- 
dian and  his  custody  awarded  to  the  mother. 

But  whatever  might  have  been  the  language  of  the  court 

1  Senseraan's  Appeal,  21  Penn.  St.  Clark,  40  E.  L.  &  Eq.  109  ;  People  v. 
331.  Wilcox,  22  Barb.  178  ;  Bounell  v.  Berry- 

2  Eoach  V.  Garvin,  1  Ves.  160;  l)ill,2  Cart.  613  ;  Rex  r.Greenhill,  4  Ad. 
Macphers.  Inf.  119 ;  Story  Eq.  Juris.  &  El.  642  ;  Garner  v.  Gordon,  41  Ind. 
§  1341 ;  Ward  c.  Roper,  7  Humph.  111.  92.    ^ee  supra,  §§  245-250,  as  to  custody. 

3  Anon.,  2  Ves.  Sen.  374  ;  Rcgina  v.         *  22  Barb.  178. 

463 


§  333  THE   DOMESTIC   RELATIONS.  [PAPvT  IV. 

in  this  case,  it  is  apparent  that  the  circumstances  were  of  a 
peculiar  character.  This  decision  turned  not  merely  upon 
chancery  powers.  It  recognized  the  deeper  principle  of 
natural  law,  that  the  relation  of  parent  and  child  shall  not 
be  roughly  severed.  And  thus  we  find  probate  guardianship 
in  this  country  frequently  limited  by  positive  enactment,  so 
as  to  reserve  to  the  parents  the  natural  control  of  their  own 
children  and  the  right  to  educate,  when  alive  and  competent 
to  transact  business.^  As  to  probate  guardians,  it  is  to  be 
added  that  the  more  natural  course,  so  far  at  least  as  strangers 
and  distant  relatives  are  concerned,  is,  in  controversies  like 
the  foregoing,  to  apply  for  the  removal  of  the  guardian  already 
appointed,  and  for  the  appointment  of  another  competent  to 
take  actual  control  of  the  ward's  person. 

§333.  Guardian's  Right  of  Custody;  Subject  continued. — 
The  English  cases  are  numerous  where  the  mother's  claim 
has  been  postponed  to  that  of  the  testamentary  or  chancery 
guardian.2  And  where  the  mother  clandestinely  removes  her 
child,  the  court  has  ordered  him  to  be  delivered  up  to  the 
guardian.^  So  where  she  procures  his  marriage  in  violation 
of  the  statute.*  And  in  a  conflict  between  the  mother  and 
the  infant's  paternal  relatives,  pending  the  appointment  of  a 
chancery  guardian,  the  court  has  given  the  interim  custody 
to  strangers.'^  But  the  court  interferes  with  reluctance  as 
against  the  mother,  where  no  misconduct  on  her  part  appears, 
especially  if  the  infant  is  of  tender  years  or  delicate  consti- 
tution, and  requires  maternal  care  and  nourishment.  And 
Lord  Eldon  observed,  in  a  case  where  the  mother's  rights 
came  in  conflict  with  those  of  the  testamentary  guardian, 
that  though  the  effect  of  the  appointment  of  a  guardian  is 
to  commit  the  custody  of  the  guardianship,  the  court  looks 
with  great  anxiety  to  the  execution  of  the  duty  belonging  to 
the  guardian,  and  the  attention  expected  to  be  paid  to  the 
reasonable   wishes  of  the   natural  parent.^     As  our  former 

1  See  Smith's  Prob.  Pract.  82,  87 ;  *  Eyre  i-.  Countess  of  Shaftesbury, 
Ramsay  v.  Ramsay,  20  Wis.  507.  2  P.  Wms.  103  ;  Gilb.  Eq.  172. 

2  See  Macphers.  Inf.  119-121.  s  /„  re  North,   11  Jur.  7.     See  An- 
8  Wright  V.  Naylor,  5  Madd.  77.           derton  v.  Yates,  15  E.  L.  &  Eq.  151. 

6  Earl  of  Ilchester's  Case,  7  Ves.  380. 

464 


CHAP,  v.]       EIGHTS   AND    DUTIES   OF    GUARDIANS.  §  333 

discussion  of  the  subject  of  parental  custody  may  have  led 
the  reader  to  infer,  the  American  rule  is  not  uniform  in  this 
respect ;  and  as  to  testamentary  and  probate  guardians,  the 
widowed  mother  is  in  some  States  preferred  to  the  guardian, 
while  in  others  the  guardian  is  preferred  to  the  mother  ;  the 
legislature  frequently  supplying  the  definite  rule  of  guid- 
ance.^ 

Testamentary  guardians  cannot  be  controlled  in  their  rights 
by  expressions,  in  other  parts  of  the  will  appointing  them, 
which  amount  to  a  mere  recommendation.  A  case  of  this 
sort  came  before  Lord  Chancellor  Cottenham  in  1847.  The 
testator  had  appointed  testamentary  guardians  over  his  chil- 
dren in  due  form,  but  had  further  expressed  the  wish  that  in 
case  of  his  wife's  death  during  their  minority  they  should  be 
placed  under  the  care  of  certain  female  relatives.  The  wife 
having  died,  the  female  relatives  desired  to  assume  full  con- 
trol. The  Lord  Chancellor  refused  to  accede  to  this  extent ; 
but,  upon  his  suggestion,  an  arrangement  was  effected,  satis- 
factory to  all  parties,  so  as  to  give  the  immediate  custody  to 
the  relatives,  while  preserving  to  the  testamentary  guardian 
that  general  control  and  superintendence  which  it  was  his 
duty  to  exercise  under  the  will.^ 

Chancery  will  grant  access  in  certain  cases  while  awarding 
the  custody  of  the  infant  to  other  persons.  Not  only  have 
orders  of  access  been  made  in  the  mother's  favor,  but,  after 
her  death,  access  has  been  allowed  to  her  representatives.^ 
And  where  Lord  Hardwicke  appointed  a  grandmother  guar- 
dian in  preference  to  the  father's  executor,  he  ordered  that 
the  latter  should  have  free  access  to  the  infants.*  So  in  a 
Georgia  case  the  court,  while  confirming  the  guardian's 
right  of  custody,  allowed  access  to  a  near  relative  on  her 
request.^ 

Where,  too,  a  decree  of  divorce  gives  the  right  of  access  to 

1  Lord  V.  Hough,  37  Cal.  657  ;  Ram-  3  Ord  v.  Blackett,  9  Mod.  116  ; 
say    V.  Ramsay,  20   Wis.  507 ;  contra,    Macphers.  Inf.  120. 

Macready   v.   Wilcox,   33   Conn.    321.         *  Hunter   v.  Macrae,  17  Oct.  1738; 

And  see  Peacock  v.  Peacock,  61  Me.  cited  in  Macphers.  Inf.  121. 

211.  ^  Ex  parte  Ralston,  1  R.  M.  Charlt. 

2  Knott  V.  Cotter,  2  Ph.  192.  119. 

30  4G5 


§  334  THE   DOMESTIC   EELATIONS,  [PART    IV. 

a  certain  parent,  not  even  a  testamentary  guardian  can  refuse 
obedience.^ 

Proceedings  on  a  writ  of  habeas  corpus  may  determine  the 
question  of  legal  custody.  But  a  child  in  the  personal  keep- 
ing of  his  guardian  is  in  legal  custody  ;  nor  can  unlawful 
imprisonment  or  restraint  be  imputed  from  the  guardian's 
refusal  to  surrender  such  child  to  ihe  parent.^  On  the  other 
hand,  the  court  cannot  entertain  habeas  corpus  to  restore  to 
the  guardian  a  child  forcibly  removed  by  the  parent,  unless 
the  child  is  actually  restrained  of  liberty.^  Besides  the  writ 
of  habeas  corpus^  there  is  a  remedy  by  petition  to  the  court 
of  chancery.^ 

§  334.  Guardian's  Right  to  change  Ward's  Domicile  or  Resi- 
dence. —  The  question  whether  the  guardian  may  change  the 
ward's  domicile  from  one  country  or  State  to  another  has 
given  rise  to  much  discussion.  In  England,  it  was  decided 
in  the  early  part  of  this  century  that  the  surviving  parent, 
being  also  the  guardian,  was  competent  to  do  so.^  The  case 
came  before  Sir  William  Grant,  and  was  argued  by  counsel 
with  great  learning  and  ability.  It  was  here  shown  that  the 
best  Continental  jurists  supported  these  views ;  among  them, 
Voet,  Rodenburgh,  Bynkershoeh,  and  Pothier.  This  is  the 
leading  case  on  the  subject,  and  its  authority  has  been  fully 
recognized  in  the  United  States.^  The  great  objection  to  a 
change  of  the  infant's  domicile  is  that  the  right  of  succession 
to  personal  property  may  be  thereby  affected  ;  and  it  seems 
probable  that,  if  the  change  is  made  with  fraudulent  intent, 
to  the  ward's  injury  or  the  custodian's  private  advantage,  it 
will  not  be  sustained.  Moreover,  as  the  case  above  referred 
to  was  that  of  a  parent,  it  has  been  doubted  whether  a  guar- 
dian, as  such,  not  being  a  parent,  has  the  right  to  change  his 

1  Hill  V.  Hill,  49  Md.  450.  *  Story  Eq.  Juris.  §  1340,  and  cases 

2  People  I'.  Wilcox,  22  Barb.  178 ;  cited  ;  and  as  to  custody  in  general, 
Townsend  v.  Kendall,  4  Minn.  412  ;  In  see  supra,  §§  245-250.  As  to  statute 
re  Andrews,  L.  R.  8  Q.  B.  153.  The  procedure  for  custody,  see  Peacock  v. 
guardian's  assent  to  a  temporary  cus-  Peacock,  61  Me.  211. 

todj'  does  not  conclude  him.    Common-  °  Potinger  v.  Wightman,  3  Mer.  67. 

wealth  V.  Reed,  55  Penn.  St.  425.  And  see  preceding  chapter. 

3  Foster  v.  Alston,  6  How.  (Miss.)  ^  Holyoke  v.  Ilaskins,  5  Pick.  20 ; 
406.  2  Kent  Com.  227,  n. 

466 


CilAP.  V.J       RIGHTS    AND   DUTIES   OF   GUAKDIANS.  §  334 

ward's  domicile.  In  Pennsylvania,  the  guardian's  authority 
has  been  denied,  and  the  power  confined  to  the  parents.^ 
But  Chancellor  Kent  expresses  dissatisfaction  with  such  a 
doctrine,  and  considers  the  objection  against  the  guardian's 
power  too  refined  and  speculative.^  The  other  American 
authorities  sustain  this  view,  though  in  general  assuming  the 
principle,  rather  than  asserting  it,  and  not  without  some  bias 
as  to  the  particular  consequences  resulting.^  The  question 
does  not  seem  to  have  been  raised  in  England.  With  the 
facilities  of  modern  travel  and  the  liberal  intercourse  of 
nations,  the  tendency  increases  in  favor  of  the  guardian's 
power  to  change  in  good  faith  his  ward's  residence,  if  not  the 
domicile,  even  though  not  endowed  with  parental  authority. 
This  principle  is  the  more  readily  admitted,  so  far  as  differ- 
ent counties  in  the  same  State  are  concerned.*  And  it 
•  would  be  unwise  for  American  courts  to  apply,  as  between 
States  united  under  one  general  government,  the  same  rigidly 
exclusive  doctrines  which  foreign  countries  differing  in  reli- 
gion, customs,  and  civil  institutions,  may  see  fit  to  adopt  in 
their  intercourse  with  one  another.  For  such  a  change 
might  be  for  the  direct  benefit  of  the  ward's  health,  education, 
or  personal  surroundings. 

The  English  Chancery  Court  reluctantly  permits  its  wards 
to  be  carried  out  of  the  national  jurisdiction.  The  Chancel- 
lor in  De  3IanneviUe  v.  De  Manyieville  restrained  a  father, 
himself  an  alien,  from  removing  his  child  to  a  foreign  coun- 
try.^    In   other  cases,  permission  has   been   granted   under 

1  ScIiooIDirectorsy.  James,  2  Watts  able  one.  Wynn  v.  Bryce,  59  Ga. 
&   Serg.   568;    and    see   Story   Confl.     529. 

Laws,  §§  494,  504.  4  Ex  parte   Bartlett,  4   Bradf.  221. 

2  2  Kent  Com.  227,  n.  (c),  where  But  the  guardian's  intention  to  change 
this  subject  is  fully  discussed.  the  ward's  domicile,  especially  in  the 

3  Where  clearly  disadvantageous  to  case  of  a  very  young  child,  is  not 
the  ward  and  the  ward's  kindred  and  to  be  presumed.  Marlieineke  v.  Grot- 
connections,  this  right  is  not  favored,  haus,  72  Mo.  204.  Here  the  ques- 
The  guardian's  right  to  change  the  tion  arose  as  to  whether,  the  guardian 
domicile  is  denied  where  such  change  having  died,  a  successor  in  the  trust 
affects  the  ward's  testamentary  capa-  was  to  be  appointed  in  a  different 
city.  Daniel  y.  Hill,  52  Ala.  430.  Or  county;  which  would  have  beea  dis- 
where  he  sent  the  ward  away  to  pre-  advantageous  to  the  ward. 

vent  a  marriage  against   his   wishes,         5  10  Ves.  52.     See  Dawson  v.  Jay, 
such  marriage  not  being  an  objection-    27  E.  L.  &  Eq.  451. 

46T 


§  335  THE   DOMESTIC   EELATIONS.  [PAET   IV. 

stipulations  for  the  benefit  of  the  child ;  the  guardian  being 
required  to  transmit  regular  returns  to  the  court  with  vouch- 
ers, and  to  bring  back  the  ward  within  a  specified  time.^ 
Similar  orders  in  chancery  have  been  made  in  this  country, 
though  rarely.^ 

§  335.  Right  to  Personal  Services  of  "Ward ;  to  recover  Dam- 
ages ;  Other  Rights.  —  The  guardian  has  not  the  same  right  as 
a  father  to  the  personal  services  of  the  infant.  For  as  his 
duty  to  educate  and  maintain  is  limited  by  law  to  the  ward's 
resources,  and  is  not,  like  the  responsibility  of  a  parent,  abso- 
lute, so  his  rights  are  those  of  a  representative,  who  should 
seek  to  add  to  the  trust  fund  in  his  hands,  and  not  to  his  own 
private  emolument.^ 

By  the  common  law,  the  guardian  could  maintain  an  action 
of  trespass  and  recover  damages  for  his  ward ;  and  the  stat- 
ute of  Westminster  II.  c.  32,  gave  a  writ  of  ravishment,  by 
means  of  which  he  could  recover  the  body  of  the  heir  as  well 
as  damages.*  The  equity  of  this  statute  may  perhaps  extend 
to  testamentary,  chancery,  and  probate  guardians,  as  well  as 
to  guardians  in  socage ;  on  which  principle  it  has  been  held 
that  the  guardian  may  sue  and  recover  damages  for  the 
seduction  of  his  female  ward.^ 

The  guardian,  acting  in  loco  parentis,  may  bind   out  his 

1  Jeffreys     v.      Vanteswartsworth,  were  thus  deprived  of  their  religious 

Barn.  141 ;   Jackson   v.   Hankey,  Jac.  opportunities,    separated    from     their 

265,?).;    Stephens  y  James,  1  M.  &  K.  natural    connections,    estranged    from 

627  ;  Lethem  v.  Hall,  7  Sim.  141  ;    Tal-  the   members   of  their   own    families, 

hot  V.  Earl  of    Shrewsbury,   18  L.  J.  withdrawn  from  those  courses  of  edu- 

125.     See  Macphers.  Inf.  1:29-132.  cation  which  their  contemporaries  were 

-  Ex  parte  Martin,  2  Hill  Eq.  71.  pursuing,  and  accustomed  to  habits 
Lord  Chancellor  Cottenham  has  ob-  and  manners  which  were  not  those  of 
served,  on  this  subject,  that  while  their  own  country,  and  were  constant- 
circumstances  may  occur,  such  as  the  ly  becoming  from  day  to  day  less 
ill-health  of  the  ward,  so  as  to  render  and  less  adapted  to  the  position  which 
his  removal  necessary,  the  general  they  should  afterwards  occupy  in  their 
rule  ought  to  be  against  permitting  an  native  land.  Campbell  v.  Mackay,  2 
infant  ward   to  be   taken   out   of  the  M.  &  C.  31. 

jurisdiction.     He  further  declared  his  ^  See   Bass   v.   Cook,  4  Port.    390; 

regret  that  this  rule  had  not  been  more  Bouv.   Diet.    "  Guardian  ;  "  Bannister 

strictly  adhered  to,  and    his  conviction  v.  Bannister,  44  Vt.  624. 
that  a  permanent  residence  abroad  was  *  Bac.  Abr.  Guardian  (F). 

injurious   to  the   future   prospects    of         ^  Fernslee   v.   Moyer,   3    Watts    & 

English    children,   inasmuch  as    they  Serg.  416. 

468 


CHAP,  v.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  337 

ward  as  an  apprentice  whenever  the  father  could  do  so. 
This,  however,  is  a  matter  abnost  exclusively  of  statute 
regulation.  And,  while  the  father  is  usually  held  liable  in 
damages  for  his  son's  breach  of  contract,  it  would  seem  that 
the  guardian  is  not  personally  responsible  for  his  ward  unless 
the  statute  makes  him  so.^ 

As  the  guardian  is  bound  to  promote  the  moral  welfare  of 
the  person  entrusted  to  his  care,  he  may  warn  off  from  the 
ward's  premises  any  persons  improper  for  him  to  associate 
with,  and,  if  necessary,  expel  them  forcibly.  This  right  is  to 
be  reasonably  construed ;  and  in  the  use  of  means  and  the 
amount  of  force  necessary  to  effect  his  object,  he  is  allowed 
a  liberal  discretion,  such  as  a  parent  might  exercise  under 
like  circumstances.^  And  in  many  other  respects  the  rights 
of  a  guardian  resemble  closely  those  of  a  parent.^ 

§  336.  Guardian's  Duties  as  to  Ward's  Person ;  in  General.  — 
The  guardian's  duties  as  to  the  ward's  person  are  those  of 
protection,  education,  and  maintenance.  In  exercising  them, 
he  is  bound  to  regard  the  ward's  best  interests.  Guardians, 
as  we  have  seen,  are  seldom  appointed  where  there  is  not  some 
property.  But  even  though  the  ward  be  penniless,  we  are 
not  to  suppose  that  one  vested  with  the  full  right  of  custody 
can  neglect  with  impunity  those  offices  of  tenderness  which 
common  charity  as  well  as  parental  affection  suggest.  For 
to  the  orphan  he  stands  in  some  sense  in  the  place  of  a 
parent,  and  supplies  that  watchfulness,  care,  and  discipline 
which  are  essential  to  the  young  in  the  foimation  of  their 
habits,  and  of  which  being  deprived  altogether,  they  would 
better  die  than  live. 

§  337.  Liability  for  Support  of  Ward.  —  It  is,  however,  to 
be  always  borne  in  mind  that  while  the  father  is  bound  to 
educate  and  maintain  his  children  absolutely  and  from  his 

1  Velde  V.  Levering,  2  Rawle,  269.  him  no   special  immunity  against  his 

2  "Wood  r.  Gale,  ION.  H.  247.  guardian.  Accordingly,  it  has  been  held 

3  Insane  persons  and  spendthrifts  that  the  guardian  of  a  spendthrift  may 
cannot  manifestly  be  subjected  to  the  enter  the  dwelling-hous'  of  the  latter, 
same  personal  restraint  and  custody  in  the  performance  of  official  duties, 
as  infants.  But  the  fact  that  such  without  his  permission  and  against  his 
ward   occupies  his  own  house  aflTords  will.     State  v.  Hvde,  29  Conn.  564. 

469 


§  337  THE  DOMESTIC   RELATIONS.  [PAET   IV. 

own  means,  no  such  pecuniary  responsibility  is  imposed  upon 
a  guardian  who  is  not  the  parent.  The  latter,  by  virtue 
merely  of  such  trust,  need  only  use  for  that  purpose  the 
ward's  fortunes.  Hence,  in  supplying  the  wants  of  his  wards, 
he  is  to  consider,  not  the  style  of  life  to  which  they  have 
been  accustomed,  so  much  as  the  income  of  their  estate 
at  his  disposal.  Whatever  their  social  rank  may  have  been, 
he  may,  provided  they  are  left  destitute,  place  them  at 
work,  or,  if  they  are  too  young  or  feeble,  surrender  them  to 
some  charitable  institution.  He  should,  however,  act  with 
delicacy  and  prudence  ;  he  may  properly  consider  in  this  con- 
nection the  habits  and  tastes  of  the  children  and  the  wishes 
of  their  relatives ;  and  he  can  relieve  himself  of  responsibility 
by  asking  judicial  guidance.  The  courts  show  a  liberal  dis- 
position to  protect  the  guardian  from  personal  liability  on 
account  of  his  ward.  And  if  a  guardian  has  permitted  the 
ward,  at  his  own  cost,  to  remain  in  the  care  and  custody  of 
another,  without  express  contract  as  to  the  period  of  time,  he 
may,  whenever  he  pleases,  terminate  his  personal  liability  by 
giving  notice.  Nor  does  it  affect  the  case  that  his  ward  is 
then  too  sick  to  be  removed.^ 

But  if  the  income  of  the  ward's  estate  is  ample  for  payment 
of  the  necessaries  supplied  him,  the  creditors  may,  by  a 
proper  course  of  procedure,  have  it  subjected  to  the  satisfac- 
tion of  their  just  claims.  And  this  too,  it  would  appear, 
notwithstanding  any  personal  undertaking  on  the  guardian's 
part.2  Not  even  funds  derived  from  a  minors  pension,  granted 
under  the  United  States  laws,  are  exempt  from  liability  for 
the  ward's  support.^ 

On  the  other  hand,  the  guardian  may  make  himself  liable 
for  his  ward  whenever  he  chooses  to  do  so,  like  any  one  else 
in  loco  parentis.     And  if  a  guardian  contracts  with  another  to 

1  Spring  V.  Woodworth,    4    Allen,         '■*  Barnum  r.  Frost,  17   Gratt.   308; 

326;  Overton  v.  Beavers,  19  Ark.  623  ;  Walker  v.  Browne,  3  Busli,  686.     Suit 

Bredin  v.  Dwen,  2  Watts,  95 ;  Hussey  on  the  probate  bond  by  permission  of 

V.  Roundtree,  Busb.  110  ;  Gwaltney  v.  court  is  the  common  remedy  in  many 

Cannon,  31  Ind.  227;  McDaniel  v.  States.  Cole  r.  Eaton,  8  Gush.  587. 
Mann,  25  Tex.  101 ;  Ford  v.  Miller,  18  3  Welch  v.  Burris,  29  Iowa,  186. 
La.  Ann.  571. 

470 


CHAP,  v.]       KIGHTS    AND    DUTIES    OF    GUARDIANS.  §  337 

support  his  ward,  he  may  become  personally  bound  by  his 
failure  to  limit  the  right  for  indemnity  to  the  estate  in  his 
hands. ^ 

For  necessaries  of  his  ward,  supplied  by  the  guardian's 
order  and  on  his  credit,  the  guardian  then  is  liable ;  and  this 
on  the  principle  to  be  noticed  hereafter,  that  the  guardian  has 
made  a  contract.  He  is  of  course  entitled  to  reimbursement 
for  the  necessaries  thus  supplied  by  himself  from  the  ward's 
estate.  So,  where  he  advances  money  for  the  ward's  main- 
tenance and  education.^  On  the  ward's  own  contract  for 
necessaries,  the  guardian  is  not  personally  liable.  And  it 
would  appear  from  some  cases  that  his  knowledge  of  the 
ward's  contract  and  failure  to  dissent  will  not  suffice ;  in 
other  words,  that  an  express  contract  should  be  shown  to 
charge  the  guardian  personally.  Yet  such  a  contract  of  the 
ward  may  be  ratified  by  the  words  or  acts  of  a  guardian  ;  and 
we  presume  that  he  may  generally  be  held  bound  on  a  con- 
tract shown  by  strong  implication  to  have  existed  between 
him  and  the  party  furnishing  education  or  support.^  As  a 
rule  the  guardian,  if  custodian  of  the  ward's  person,  has  the 
same  right  to  judge  as  to  what  are  necessaries,  according  to 
the  estate  and  social  position  of  his  ward,  that  a  parent  would 

1  See  Lewis  v.  Edwards,  44  Md.  333,  tenance,  and  lias  the  power  of  indemni- 
as  to  offsets  for  tlie  services  of  the  ward  fying  himself  for  any  contracts  he  may 
to  one  who  sues  the  guardian  for  his  make ;  that  it  is  his  business  to  know 
board.  On  the  principle  of  the  text,  a  the  amount  and  situation  of  the  estate, 
caseinVermont  was  decided  a  few  years  and  tliafhe  is  not  obliged  to  incur  any 
ago.  The  guardian  had  contracted  for  liability  beyond  it.  If  he  do  so  it  is  his 
the  board  of  his  ward,  at  a  dollar  and  own  fault,  for  which  others,  who  cannot 
a  half  a  week,  fixing  no  limitation  as  to  be  so  well  possessed  of  this  knowledge, 
time.  The  person  furnisliing  the  board  ought  not  to  suffer.  But  the  court  also 
afterwards  notified  him  that  he  should  held  that  under  the  above  contract  the 
raise  tlie  price  to  two  dollars  a  week,  guardian  was  not  personally  liable  for 
and  that  if  this  was  not  satisfactory  the  extra  charges  against  the  ward,  such  as 
ward  must  be  taken  away.  The  guar-  repairs  on  clothing,  washing,  care  and 
dian  did  not  take  the  ward  awaj',  nor  medical  attendance  while  sick,  and 
on  the  other  hand  did  he  expressly  ac-  burial  expenses.  Hutchinson  <;.  Hutch- 
cede  to  the  new  contract.  But  the  inson,  19  Vt.  437. 
court  inferred  from  the  circumstances  -  Smitli's  Appeal,  30  Penn.  St.  397; 
that  he  had  made  himself  personally  Rollins  v.  Marsh,  128  Mass.  116;  infra, 
liable  for  the  increased  rate.     It  was  c.  6. 

observed  in  this  case  that  the  guardian  •*  Tucker  v.  McKee,  1  Bailey,  344; 

has  the  possession  and  control  of  the  Hargrove  v.  Webb,  27  Ga.  172 ;  Oliver 

ward's  estate,  for  his  support  and  main-  v.  Houdlet,  13  Mass.  237. 

471 


§  338  THE   DOMESTIC   KELATIONS.  [PART   IV. 

have  for  his  own  child  ;  ^  and  others  who  supply  the  minor  are 
bound  to  take  heed  accordingly.^  It  is  held  that  the  guar- 
dian appointed  in  one  State  may  sue  a  foreign  guardian  for 
the  support  and  education  of  wards  left  with  the  former  by 
consent  of  the  latter  guardian."  So  wherever  a  town  is 
liable  for  the  support  of  a  ward  as  a  pauper,  his  guardian  may 
claim  reimbursement  for  necessary  expenses  incurred  after  the 
ward's  property  has  been  exhausted.*  A  guardian  is  pre- 
sumed to  furnish  all  necessaries  for  his  infant  ward,  and  a 
stranger  who  furnishes  them  must  in  general  contract  with 
the  guardian  himself.^  But  where  the  guardian  makes  pur- 
chases, the  party  furnishing  the  goods  is  not  bound  to  see 
that  payment  is  made  from  the  ward's  income.  This  risk 
must  be  run  by  the  guardian  himself,  for  the  facts  are  within 
his  own  peculiar  knowledge.^ 

§  338.  Same  Subject;  Using  Income  or  Capital,  &c.  —  The 
doctrine  has  been  repeatedly  declared  that  no  guardian  can 
expend  more  than  the  income  of  his  ward's  estate  without 
proper  judicial  sanction.  This  is  the  settled  rule  in  chancery, 
and  it  is  universally  applicable  in  the  United  States.'^  And  a 
similar  principle  prevails  under  the  civil  law.^  But  to  what 
extent  the  guardian  renders  himself  personally  liable,  by  ex- 
ceeding the  income  without  previous  sanction  of  the  court,  is 
not  quite  clear.  The  English  rule  is  undoubtedly  strict.  But 
as  to  piobate  guardians,  and  in  modern  practice,  legal  formal- 
ities have  been  considerably  relaxed.  In  most  of  the  United 
States  the  guardian  is,  doubtless,  justified  in  breaking  the 
principal  fund,  under  strong  circumstances  of  necessity,  for 
the  benefit  of  his  ward,  and  he  may  leave  his  conduct  to  the 
subsequent  ajjproval  of  the  court  when  he  presents  his  ac- 


1  Nicholson  v.  Spencer,  11  Ga.  607;         ^  Broadus  v.  Rosson,  3  Leigh,   12; 
Kraker  v.  Byrum,  13  Rich.  1G3.  Hutchinson  v.  Hutchinson,  I'J  Vt.  437. 

2  McKanna  v.  Merry,  61  111.  177.  ■?  Li  re  Bostwick,  4  Johns.  Ch.  100; 

3  Spring   V.   Woodworth,    2   Allen,  Myers  i-.  Wade,  6  Rand.  444;  2  J.  J. 
206.  Marsh.  403 ;  Villard  v.  Chovin,  2  Strobh, 

*  Fiskr.  Lincoln,  19  Pick.  473.     See  Eq.   40;   State  v.   Clark,   16  Ind.   97; 

Preble  v.  Longfellow,  48  Me.  279.  Beeler  v.  Dunn,  3  Head,  87. 

5  State  V.  Cook,  12  Ired.  67;   Roy-         8  Payne  v.  Scott,  14  La.  Ann.  7G0. 
ston  V.  Royston,  29  Ga.  82. 

472 


CHAP,  v.]       RIGHTS    AND   DUTIES    OF   GUARDIANS.  §  338 

counts.  In  cases  of  risk  and  uncertainty,  however,  the  proper 
course  is  to  obtain  a  previous  order.^ 

The  order  in  which  the  ward's  property  should  be  expended 
for  his  support  and  education  is  as  follows :  first,  the  income 
of  the  property ;  next,  if  that  proves  insufficient,  the  prin- 
cipal of  personal  property  ;  lastly,  if  both  are  inadequate, 
the  ward's  real  estate,  or  so  much  of  it  as  may  be  necessary. 
The  ward's  real  estate  can  never  be  sold,  except  under  a  pre- 
vious order  of  court.  Nor  can  a  guardian  use,  in  maintaining 
his  ward,  the  proceeds  of  real  estate  sold  for  the  purpose  of  re- 
investment only,  any  more  than  he  could  have  used  the  real 
estate  itself.  He  should  ask  to  sell  for  the  purpose  of  main- 
tenance.^ 

In  some  cases,  it  becomes  both  reasonable  and  necessary  to 
exceed  the  ward's  income.  Thus  courts  of  chancery  author- 
ize the  capital  to  be  broken  upon,  where  the  property  is 
small  and  the  income  inadequate  for  support.^  As  where  the 
ward's  education  is  nearly  completed,  especially  if  he  will 
thereby  be  fitted  for  a  profession.  Or  where  the  ward  is 
mentally  or  physically  unfit  to  be  bound  out  as  an  appren- 
tice.'* So,  too,  in  case  of  extreme  sickness,  or  other  emer- 
gency, where  an  unusual  outlay  becomes  necessary.^  And 
the  guardian  can  anticipate  the  income  of  one  year  in  sup- 
plying the  casual  deficiency  of  another.^  And  he  may 
treat  an  increase  of  value  in  his  ward's  property  as  income.'^ 
And  he  may  use  the  accumulated  profits  of  previous  years 
where   necessary.     A  young   lady   who   is   a  ward  may  be 

i  Story  Eq.  Juris.  §  1355  ;  Chapline         ^  McDowell  v.  Caldwell,  2  McC.  Ch. 

V.  Moore,  7  Monr.  150 ;  Davis  v.  Hark-  43  ;  Farrance  v.  Viley,  9  E.  L.   &  Eq. 

ness,  1  Gilm.  173;  Davis  v.  Roberts,  1  219;    Roseborough  i-.  Roseborough,  3 

Sm.  &  M.  Ch.   543 ;    Royston  v.  Roy-  Baxt.  314. 

ston,  29  Ga.  82 ;  Foteaux  v.  Lepage,  6         ■*  Johnston  v.  Coleman,  3  Jones  Eq. 

Clarke   (Iowa),    123;     Gilbert    v.    Mc-  290. 

Eachen,  38  Miss.  469  ;  Phillips  t\  Davis,         ^  Longi'.  Norcom,  2  Ired.  Eq.  354 

2  Sneed,  520 ;   Cummins  v.  Cummins,  In  re  Clark,  17  E.  L  &  Eq.  599. 
29  III.  452;   Cohen  v.  Shyer,  1  Tenn.         ^  Carmichael  u.  Wilson.  3  Moll.  87 

Ch.  192.  '  Bybee  v.  Tharp,  4  B.  Monr.  313. 

2  Strong  V.  Moe,  8  Allen,  125  ;  Rin-         ■?  Long  v.  Norcom,  2  Ired.  Eq.  354 

ker  V.  Street,   33  Gratt.  663.     See  St.  Macphers.  Inf.  337,  338. 
Joseph's    Academy  v.    Augustine,    55 
Ala.  493. 

473 


339 


THE  DOMESTIC   EELATIONS. 


[PAET   IV. 


allowed  small  sums  by  way  of  spending-money  for  her  per- 
sonal needs,  apart  from  what  may  be  actually  necessary  to 
eat  and  wear.^  In  short,  the  guardian  is  allowed  a  liberal 
discretion  in  expenditures  for  maintenance  and  education,  so 
long  as  he  refrains  from  enroaching  upon  the  ward's  capital.^ 
And  it  is  held  that  he  is  limited  in  his  disbursements,  not  to  the 
income  of  the  ward's  estate  actually  in  his  hands,  but  to  the  in- 
come of  the  ward's  estate  wherever  situated.^ 

§  339.  Allowance  to  Parent  for  Ward's  Support;  Chancery 
Rules.  —  As  the  father  is  bound  to  support  his  own  children, 
he  cannot,  when  guardian,  claim  the  right  to  use  the  income 
of  their  property  for  that  purpose ;  much  less  to  disturb  the 
principal.  But,  as  we  have  seen,  a  father  is  allowed,  when 
his  means  are  small,  to  claim  assistance  from  their  fortunes, 
to  bring  them  up  in  becoming  style.  And  where  the  father, 
when  acting  as  guardian  for  his  own  children,  might  have  re- 
imbursed himself,  any  other  person,  as  guardian,  may  help 
him  ;  rather,  however,  for  the  future  than  for  the  past.* 


1  Karney  v.  Vale,  56  Ind.  542. 

2  Brown  v.  MuUins,  24  Miss.  204; 
Speer  v.  Tinsley,  55  Ga.  89. 

3  Foreman  v.  Murray,  7  Leigh,  412  ; 
Maciin  v.  Smitli,  2  Ireil.  Eq.  371.  And 
see  In  re  Coe's  Trust,  4  K.  &  J.  199. 

*  Macpliers.  Inf.  219  ;  Clark  u.  Mont- 
gomery, 23  Barb.  464  ;  Beasley  v.  Wat- 
son, 41  Ala.  234 ;  Welch  v.  Burris,  29 
Iowa,  186;  Myers  v.  Wade,  6  Rand. 
444;  Walker  v.  Crovvder,  2  Ired.  Eq. 
478.  See  supra,  §§  237-240.  As  to 
parents,  and  those  like  a  stepfather 
who  choose  to  stand  in  place  of  a  pa- 
rent, the  rules  of  maintenance  which 
have  already  been  stated  apply  as  to 
such  allowances,  in  a  guardian's  ac- 
counts. If  the  guardian,  or  the  per- 
son with  whose  claim  he  charges  him- 
self, was  of  adequate  means  and  bound 
legally  to  maintain  the  child  as  parent 
or  fully  undertook  to  supply  the  place 
of  parent,  education  and  support  can- 
not generally  be  allowed  from  the 
ward's  estate.  Bradford  v.  Bodfish,  39 
Iowa,  681 ;  Douglas's  Appeal,  82  Penn. 

474 


St.  169.  The  expense  of  past  mainten- 
ance is  the  less  readily  allowable. 
Eolger  V.  Heidel,  GO  Mo.  284.  Yet  fu- 
ture maintenance  is  chargeable  where 
the  ward's  means  were  disproportion- 
ate to  the  parent's  and  needful  to  pro- 
vide in  suitable  style ;  and  even  past 
maintenance  may  be  thus  allowed. 
Supra,  Part  III.  c.  2.  And  if  one  in  place 
of  parent  has  undertaken  the  function 
upon  some  such  proviso,  the  ward's 
income  may  be  used.  The  circum- 
stances may  always  be  considered,  and 
the  proportionate  means  as  between 
the  ward  and  the  person  fulfilling  the 
parental  functions.  Vocssing  v.  Voes- 
sing,  4  Kedf.  360.  The  ward's  per- 
sonal service,  if  of  value,  is  a  proper 
credit  in  allowing  for  maintenance. 
Starling  v.  Balkum,  47  Ala.  314.  The 
guardian  of  an  insane  ward  may  prop- 
erly charge  for  the  expense  of  board- 
ing the  ward  at  an  insane  asylum  ;  the 
ward's  estate  being  sufficient  for  such 
expenditure.  Corcoran  v.  Allen,  11 
11.  I.  507. 


CHAP,  v.]        RIGHTS    AND   DUTIES    OF    GUARDIANS.  §  339 

The  allowance  of  money  for  the  maintenance  and  educa- 
tion of  infants  constitutes  an  important  branch  of  the  Eng- 
lish as  contrasted  with  our  American  chancery  jurisprudence. 
Generally  speaking,  whenever  application  is  made  for  the 
appointment  of  a  chancery  guardian,  maintenance  is  also  ap- 
plied for ;  and  the  guardian  receives  no  more  than  the  annual 
sum  fixed  by  the  court.  The  ward's  whole  fortune  is  held 
at  the  disposal  of  the  court,  whether  the  infant  was  made  a 
ward  by  suit  or  otherwise.  If  a  suit  be  pending,  the  guardian 
receives  his  allowance  through  the  receiver  or  some  other 
officer  of  the  court.  If  there  be  no  suit  pending,  the  execu- 
tor or  trustee  pays  the  annual  sum  fixed  by  the  court :  and, 
if  the  whole  proceeds  of  real  estate  be  ordered  for  mainten- 
ance, the  tenants  are  safe  in  attorning  to  the  guardian.  But 
parties  making  payment  are  discharged  only  to  the  extent  of 
the  allowance  decreed.^ 

Testamentary  guardians  are,  however,  frequently  author- 
ized by  the  testator  to  apply  at  discretion  from  the  income 
of  the  infant's  fund,  or  from  the  capital,  for  his  support ;  and 
such  discretion  will  not  be  controlled  so  long  as  the  guardian 
acts  in  good  faith.  But  trustees  and  guardians  frequently 
procure  an  order  of  maintenance,  notwithstanding,  in  order 
to  relieve  themselves  of  all  responsibility .^  Doubts  were 
formerly  entertained  of  the  power  of  chancery  to  interfere 
in  these  and  other  cases  where  the  infant  had  not  been  made 
a  ward  of  chancery  by  suit.  No  such  doubts  now  exist, 
however  ;  and  the  court  will,  on  petition,  and  without  for- 
mal proceedings  by  bill,  settle  a  due  maintenance.^ 

1  Macphers.  Inf.  106  ;  Ex  parte  Star-  usually,  that  if  the  court  would  have 
kie,  3  Sim.  339.  Cliancery  will  con-  authorized  the  expenditure  upon  ap- 
trol  the  discretion  of  trustees  as  to  plication  before  it  was  made,  the  ex- 
allowance.  In  re  Hodges,  L.  R.  7  Ch.  penditure  will  be  sanctioned  upon  set- 
D.  754.  tlement    of   the    guardian's    accounts. 

'^  Macphers.   Inf.   213 ;    Livesey   v.  Rinker  v.  Streit,  33  Gratt.  663. 
Harding,  Tanil.  460  ;  French  v.  David-         ^  story  Eq.  Juris.  §  1354,  and  cases 

son,  3  Madd.  306;  Collins  v.  Vining,  1  cited.     And  see  Kettletas  v.  Gardner,  1 

C.  P.  Cooper,  472.     In  Mississippi  the  Paige,  488. 

sum  for  maintenance   and    education  Trustees  may  be  authorized  by  the 

must  be  fixed  in  chancery.     Dalton  v.  terms  of  the  trust  to  expend  a  certain 

Jones,  51  Miss.  585.     But   as   to  per-  sum  for  maintenance  and    support  of 

sonal  estate,   the    American    rule    is  children.     It  is  generally   understood 

475 


§  340  THE  DOMESTIC   RELATIONS.  [PART   IV. 

§  340.  Secular  and  Religious  Education  of  Ward  by  Guar- 
dian.—  Courts  of  chancery  treat  the  guardian  as  the  propei- 
judge  of  the  place  where  his  ward  shall  be  educated,  and  will, 
if  necessary,  issue  orders  to  compel  obedience.  But  if  guar- 
dians disagree  as  to  the  mode  of  their  ward's  education,  the 
court  will  exercise  its  own  discretion  and  will  not  consider 
itself  bound  by  the  wishes  of  the  majority .^  Parol  evidence 
of  the  deceased  father's  wishes  is  admissible,  and  the  court 
will  pay  attention  to  such  wishes,  although  informally  ex- 
pressed, in  judging  of  the  mode  of  education  of  children  as 
well  as  in  the  appointing  of  a  guardian .^ 

The  subject  of  a  child's  religious  education  received  much 
consideration  in  a  late  English  case,  where,  notwithstanding 
the  father's  directions  in  his  will  appointing  a  testamentary 
guardian  who  was,  like  himself,  a  Roman  Catholic,  a  daugh- 
ter nine  years  old  was  allowed  to  remain  with  her  mother,  a 
Protestant,  and  to  be  brought  up  in  the  same  religious  faith  ; 
and  this  against  the  guardian's  wishes,  tardily  expressed. 
An  antenuptial  agreement,  made  between  the  husband  and 
wife,  stipulating  that  boys  of  the  marriage  should  be  educated 
in  the  religion  of  the  father,  and  girls  in  that  of  the  mother, 
was  indeed  declared  of  no  binding  force  as  a  contract ;  and 
yet  it  was  added  that  this  agreement  would  have  weight  with 
the  court  in  considering,  after  the  father's  death,  whether  he 
had  abandoned  his  right  to  educate  this  daughter  in  his  own 
religion.  The  welfare  of  the  child  was,  under  the  circum- 
stances, deemed  a  verj^  important  consideration.^ 

that  the   expenses   of    education    are  v.   Mackay,  2  M.   &   C.    34 ;      contra, 

thus  includerl.     Breed's  Will,  1  Ch.  D.  Storke  i:  Storkc,  3  P.  Wms.  51. 

226.     Trustees  under  a   will  thus  au-  ^  Andrews  w.  Salt,  L.  R.  C  Ch.  622. 

thorized,   and   in   effect    testamentary  See  In  r-   Newbery,  L.   R.  1  Ch.  263. 

guardians,  are   not  compelled   to   pay  where  tlib  deceased  father's  wishes  pre- 

nver  such  moneys  to  a  statute  or  pro-  vailed,  as  against  the  mother  and   the 

hate  guardian.     Capps  v.  Hickman,  97  children,  so   that   the   minor  children 

111.  429.  might  not  be  taken   to  worship   at  a 

1  Story  Eq.  Juris.  §1340;  Macphers.  chapel  of  the  "Plymouth  Brethren." 
Inf.  121;  Tremain's  Case,  Stra.  168;  And  see /«?-e  Agar-EUis,  27  W.  R.  117  ; 
Hall  V.  Hall,  8  Atk.  721.  supra,  Part  III.  c.  2,  where  the  general 

2  Anon.,  2  Ves.  Sen.  56;  Campbell  subject  of  a  child's  education  and  main- 

tenance is  discussed. 

476 


CHAP.  VI.]      EIGHTS   AIO)  DUTIES   OF   GUAKDIANS.  §  342 


CHAPTER  VI. 

EIGHTS   AND   DUTIES     OF  THE    GUARDIAN   AS    TO   THE 
WAED's    ESTATE. 

§341.  In  General;  Leading  Principles.  —  We  have  seen 
that  chancery  guardians  have  only  a  limited  authority  over 
the  estates  of  their  wards,  inasmuch  as  the  court  makes  a 
fixed  allowance,  to  be  consumed  in  maintenance  and  educa- 
tion, leaving  the  bulk  of  the  infant's  estate  in  the  hands  of 
executors,  trustees,  or  its  own  officers.  In  this  country  guar- 
dians almost  invariably  assume  the  full  management  of  their 
ward's  fortunes,  unless  restrained  by  the  will  of  the  testator ; 
and  whenever  they  do  so  they  are  bound  by  the  principles 
which  regulate  the  general  conduct  of  all  trustees. 

The  leading  principle  recognized  by  chancery  in  supervis- 
ing the  guardian's  conduct  is,  that  the  ward's  interests  are  of 
paramount  consideration.  Hence,  two  observations  are  to  be 
made  at  the  outset  of  this  chapter.  The  first  is,  that  un- 
authorized acts  of  the  guardian  may  be  sanctioned  if  they 
redound  to  the  ward's  benefit ;  while,  on  the  other  hand,  for 
unauthorized  acts  by  which  the  ward's  estate  suffers,  the 
guardian  must  pay  the  penalty  of  his  imprudence.^  The 
second  is,  that  the  guardian's  trust  is  one  of  obligation  and 
duty,  and  not  of  speculation  and  profit.^  We  shall  have 
occasion  to  apply  these  observations  as  we  proceed. 

§  342.  Guardian's  General  Powers  and  Duties  as  to  Ward's 
Estate.  —  Among  the  most  obvious  powers  and  duties  of  the 
guardian  in  the  management  of  his  ward's  property  are  these : 
To  collect  all  dues  and  give  receipts  for  the  same.  To  pro- 
cure such  legacies  and  distributive  shares  from  testators  or 

1  Milner  v.  Lord  Harewood,  18  Yes.  Jr.  259 ;  Capeliart  v.  Huey,  1  Hill  Ch.  405. 

2  2  Kent  Com.  229. 

477 


§  343  THE   DOMESTIC   RELATIONS.  [PAKT   IV. 

others  as  may  have  accrued.  To  take  and  hold  all  property- 
settled  upon  the  ward  by  way  of  gift  or  purchase,  unless 
some  trustee  is  interposed.  To  collect  dividends  and  inter- 
est, and  the  income  of  personal  property  in  general.  To 
receive  and  receipt  for  the  rents  and  profits  of  real  estate. 
To  receive  moneys  due  the  ward  on  bond  and  mortgage.  To 
pay  the  necessary  expenses  of  the  ward's  personal  protection, 
education  and  support.  To  invest  and  reinvest  all  balances 
in  his  hands.  To  sell  the  capital  of  the  ward's  property, 
change  the  character  of  investments  when  needful,  convert 
real  into  personal  and  personal  into  real  estate,  in  a  suitable 
exigency  ;  but  not  without  judicial  direction.  To  account  to 
the  ward  or  his  legal  representatives  at  the  expiration  of  his 
trust.  And,  in  general,  to  exercise  the  same  prudence  and 
foresight  which  a  good  business  man  would  use  in  the  man- 
agement of  his  own  fortunes,  though  under  more  guarded 
restraints.^ 

§  343.  Right  to  sue  and  arbitrate  as  to  Ward's  Estate. —  The 
right  to  collect  a  debt  implies  the  right  to  sue.  Hence,  the 
guardian  may,  in  the  exercise  of  good  discretion,  and  acting, 
if  need  be,  under  competent  legal  advice,  institute  suits  to 
recover  the  ward's  property.^  And  this  right  extends  to 
property  fraudulently  obtained  from  the  ward  before  the 
guardian's  appointment.^  But  he  must  sue  in  general  in 
the  name  of  his  ward  (except  under  qualifications  to  be 
noticed),  and  not  in  his  own  name.*  And  if  he  institutes 
groundless  and  speculative  suits,  and  is  unsuccessful,  or  oc- 
casions a  controversy  over  his  accounts  through  his  own  fault, 
he  must  bear  the  loss.  So,  too,  whenever  his  conduct  shows 
fraud  or  heedless  imprudence.^  Otherwise,  he  is  entitled  to 
his  costs  and  legal  expenses  out  of  the  ward's  estate.^     The 

1  Genet  v.  Tallmadge,  1  Johns.  Ch.         ^  Sonies  v.  Skinner,  16  Mass.  348. 

3 ;    Jackson  v.  Sears,   10  Johns.   43.3 ;         *  Longstreet    v.    Tilton,    Coxe,  38 ; 

Eichelberger's    Appeal,   4  Watts,  84 ;  SiUings  v.  Bumgardner,  9  Gratt.  273  ; 

Swan  V.  Dent,   2  Md.  Ch.  HI;    Cren-  Vincent  v.  Starks,  45  Wis.  458. 
shaw    V.    Crenshaw,  4   Rich.  Eq.  14;         ^  Brown  v.  Brown,   5  E.  L.  &  Eq. 

Chapman  v.  Tibbits,  33  N.  Y.  289.  507  ;   Savage  v.  Dickson,  16  Ala.  257  ; 

2  Smith  V.  Bean,  8  N.  H.  15;   Shep-  Blake  v.  Pegram,  109  Mass.  541 ;  Spel- 
herd  v.  Evans,  9  Ind.  260;    Southwest-  man  n  Terry,  74  N.  Y.  448. 

ern  K.  v  Chapman,  46  Ga.  557.  "  Re  Flinn,  31  N.  J.  Eq.  640. 

4T8 


CHAP.  VI.]      EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  343 

rule  in  many  States  now  is  that  the  guardian  sues  and  is  to 
be  sued  upon  his  own  express  contract  touching  the  ward's 
estate.  And  in  various  instances  he  may  appear  and  make 
defence  for  the  ward.  But  in  other  States  the  older  rule  of 
the  English  chancery  is  followed,  which  required  a  guardian 
ad  litem  to  make  defence,  the  infant  being  the  party  sued.^ 


1  Taylor  v.  Kilgore,  33  Ala.  214  ;  1 
Foster  (N.  H.),  iiOi.  Among  the  cases 
in  which  the  guardian  lias  been  allowed 
to  sue  in  his  own  name  are  the  follow- 
ing :  For  nonpayment  of  rent.  Pond 
V.  Curtiss,  7  Wend.  45.  For  trespass 
on  his  ward's  lands.  Truss  v.  Old,  6 
Rand.  55G ;  Bacon  v.  Taylor,  Kirby, 
3(j8.  For  intermeddling  with  the  issues 
and  profits  thereof.  Beecher  v.  Grouse, 
19  Wend.  306.  For  an  injury  to  any 
property  of  the  ward  in  his  actual  pos- 
session. Fuqua  v.  Hunt,  1  Ala.  197. 
Or  where  he  has  the  right  of  posses- 
sion. Sutherland  v.  Goff,  5  Porter,  508  ; 
Field  V.  Lucas,  21  Ga.  447.  Or  on  a 
note  payable  to  himself,  as  guardian, 
though  given  for  a  debt  due  to  the 
ward.  JoUiffe  v.  Higgins,  6  Munf.  3  ; 
Baker  v.  Ormsby,  4  Scam.  325  ;  Thach- 
er  V.  Dinsmore,  5  Mass.  299 ;  High- 
tower  V.  Mail  11,  50  Ala.  495.  Or,  as  it 
would  appear,  on  his  express  contract 
touching  the  ward's  estate.  Thomas  u. 
Bennett,  56  Barb.  197. 

But  debts  and  demands  of  the  ward 
should  in  general  be  prosecuted  in  the 
ward's  name.  And  the  guardian  can- 
not sue  in  his  own  name,  after  his  fe- 
male ward's  marriage,  for  a  debt  due 
her  before  such  marriage.  Barnct  v. 
Commonwealth,  4  J.  J.  Marsh.  389. 
Nor  on  a  promise  to  the  guardians  of 
the  minor  cliildren  of  A.  B. ;  for  this  is 
a  promise  to  the  wards.  Carskadden 
V.  McGhee,  7  Watts  &  Serg.  140.  Nor 
on  an  award,  although  he  had  sub- 
mitted to  arbitration.  Hutchins  v. 
Johnson,  12  Conn.  376.  Nor  where  a 
statute  authorizes  guardians  to  "  de- 
mand, sue  for,  and  receive  all  debts 
due  "  their  wards.  Hutchins  v.  Dresser, 
26  Me.  76.  And  see  Hoare  v.  Harris, 
11  111.  24;  Fox  V.  Minor,  32  Cal.  111. 


He  cannot  act  on  a  petition  for  parti- 
tion. Stratton's  Case,  1  Johns.  509 ; 
Totten's  Appeal,  46  Penn.  St.  301.  Nor 
subscribe  a  libel  for  divorce.  Winslow 
V.  Winslow,  7  Mass.  96.  He  is  some- 
times authorized  by  statute,  however, 
to  sue  in  his  own  name  for  the  use  of 
the  ward.  Fuqua  v.  Hunt,  1  Ala.  197 ; 
Longmire  i'.  Pilkington,  37  Ala.  296  ; 
Mebane  v.  Mebane,  66  N.  C.  334.  And 
see  Anderson  v.  Watson,  3  Met.  (Ky.) 
509;  Hines  v.  MuUins,  25  Ga.  696.  A 
guardian  in  Georgia  must  be  party 
in  an  action  to  recover  a  legacy  be- 
queathed to  his  deceased  ward.  Beav- 
ers V.  Brewster,  62  Ga.  574.  Guardian 
for  minor  heirs  allowed,  in  Texas,  to 
sue  on  a  promissory  note  payable  to 
the  ancestor,  on  showing  that  they  are 
the  only  heirs,  and  that  there  has  been 
no  administration.  Roberts  v.  Sacra,  38 
Tex.  580  Sed  qu.  For  unlawful  de- 
tainer, and  semble  in  all  suits  by  guar- 
dian for  the  benefit  of  the  ward,  the 
action  should  be  entitled  in  tlie  ward's 
name  Oy  guardian.  Vincent  v.  Starks, 
45  Wis.  458.  A  general  guardian  may 
sue  in  his  own  name  to  recover  an  in- 
fant's distributive  share  ;  and  separate 
suits  where  there  are  several  infants  so 
entitled.  Hauenstein  v.  Kull,  59  How. 
Pr.  24.  Cf.  Jordan  v.  Donahue,  12  R.  I. 
199,  and  cases  cited.  And  see  Ankeny 
V.  Blackiston,  7  Or.  407.  As  to  pro- 
cedure in  West  Virginia,  see  Burdett  v. 
Cain,  8  W.  Va.  282.  In  Illinois  the 
probate  or  statute  guardian  cannot 
bring  suits  in  relation  to  his  ward's 
real  estate,  such  as  ejectment.  Muller 
V.  Benner,  69  III.  108. 

Payment  by  the  debtor  to  an  unau- 
thorized person  cannot  avail  in  defence 
against  the  guardian's  suit ;  but  as  to 
the  defence  of  payment  to  the  natural 

479 


§343 


THE   DOMESTIC   RELATIONS. 


[part   IV. 


A  guardian  is  now  generally  permitted  to  submit  to  arbi- 
tration questions  and  controversies  respecting  the  property 
and  interests  of  his  ward,  and  the  award  made  in  pursuance 
thereof  is  binding  on  all  parties.^  So  he  may  compromise 
when  acting  in  good  faith  and  sound  discretion  for  the  bene- 
fit of  his  ward.  But  the  guardian's  compromise  of  a  baseless 
and  unjust  claim  would  not  be  upheld  in  equity  as  against 
the  ward,  nor,  as  it  would  seem,  against  the  guardian  himself, 
no  blame  attaching  to  the  latter.^  An  infant  cannot,  in  any 
event,  be  bound  by  the  fraudulent  compromise  of  his  guar- 
dian.^ On  the  same  general  principles,  and  with  like  limita- 
tions,  the   guardian    may  release  a  debt  due   his   ward,  or 


guardian,  cf.  supra,  §  255;  also  South- 
western R.  V.  Cliapman,  40  Ga.  557. 

The  right  of  action  upon  a  note  pay- 
able to  a  guardian  for  money  of  tiie 
ward  passes,  upon  the  guardian's  death, 
to  his  personal  representative.  Chit- 
wood  V.  Cromwell,  12  Heisk.  658.  And 
so  in  general  wliere  he  might,  if  alive, 
have  sued  in  his  own  name.     lb. 

A  guardian  is  to  be  sued  in  person 
upon  notes  executed  by  him  in  his 
official  capacity.  See  1  Pars.  Bills  & 
Notes,  89,  90;  Thacher  v.  Dinsmore, 
5  Mass.  299. 

A  guardian  is  not  liable  in  assumpsit 
for  necessaries.  Cole  v.  Eaton,  8  Cush. 
587.  Nor  for  labor  performed  on  the 
ward's  buildings.  Robinson  v.  Hersey, 
60  Me.  225.  But  he  may  be  sued  upon 
his  own  contract  touching  his  ward's 
estate.  Stevenson  v.  Bruce,  10  Ind. 
397.  And  judgment  should  tlien  be 
against  him  personally,  and  not  against 
the  ward.  Clark  v.  Casler,  1  Cart.  (Ind.) 
243.  Wliere  the  judgment  is  to  bind 
the  ward's  property,  suit  should  be 
against  the  ward.  Otherwise,  the  prop- 
erty of  the  guardian  must  be  levied 
upon,  who  will  look  to  the  infant's  es- 
tate for  his  own  reimbursement.  Tobin 
V.  Addison,  2  Strobh.  3 ;  Clark  v.  Cas- 
ler, 1  Sraitii  (Ind.),  150.  And  see  Ray- 
mond V.  Sawyer,  37  Me.  406.  As  to 
conclusiveness  of  judgments,  see  Mor- 
ris V.  Garrison,  27  Penn.  St.  226.  Judg- 

480 


ment  against  a  person  as  "  guardian," 
is  a  judgment  against  him  personally, 
the  additional  words  being  descriptive 
merely.  No  action  lies  against  a  guar- 
dian upon  the  ward's  contracts  or  debts ; 
but  suit  should  be  against  the  ward, 
who  may  defend  by  guardian.  Brown 
V.  Chase,  4  Mass.  439;  Willard  v.  Fair- 
banks, 8  R.  I.  1.  In  dower  and  parti- 
tion proceedings  a  guardian  may  appear 
for  the  ward,  like  any  guardian  ad  litem, 
in  some  States.  Rankin  v.  Kemp,  21 
Ohio  St.  651  :  Cowan  v,  Anderson,  7 
Cold.  284.  In  Massachusetts,  a  ward's 
money  may  be  reached  by  trustee  pro- 
cess against  him  or  taken  on  execution. 
Simmons  v.  Almy,  100  Mass  239.  In  a 
suit  against  A.  B.  the  words  "  as  he  is 
guardian,"  &c.,  may  be  rejected  as  sur- 
plusage. Rollins  V.  Marsh,  128  Mass. 
116. 

Guardian  and  insane  ward  cannot  be 
sued  jointly  to  recover  a  debt  which 
the  ward  incurred  previous  to  the  guar- 
dian's appointment.  Allen  v.  Iloppin, 
9  R.  I.  2.58. 

1  Weed  V.  Ellis,  3  Caines,  253  ;  Wes- 
ton V.  Stewart,  11  Me.  326;  Ilutchins 
V.  .Tohnson,  12  Conn.  376 ;  Goleman  v. 
Turner,  14  S.  &  M.  118;  Strong  v. 
Beroujon,  18  Ala.  168. 

-  Underwood  v.  Brockman,  4  Dana, 
309. 

3  Lunday  v.  Thomas,  26  Ga.  637. 


CHAP.  Vr.]      RIGHTS  AND   DUTIES   OF   GUARDIANS.  §  344 

cause  of  action  for  damages.^  The  same  rule  as  to  compound- 
ing and  releasing  debts  appears  to  prevail  in  England  as  in 
this  country ;  and  it  applies  to  all  trustees  alike.^  The  ori- 
ginal doctrine  seems  to  be  this :  that  he  cannot  bind  his  ward 
by  arbitration  unless  the  court  shall  previously  authorize  him 
to  do  so,  or  subsequently  approve,  on  the  ground  that  it  was 
for  the  ward's  benefit.^ 

§  344.  Whether  Guardian  can  bind  "Ward's  Estate  by  his  Con- 
tracts. —  A  guardian,  it  is  said,  cannot  by  his  general  contracts 
bind  the  person  or  estate  of  his  ward.^  Nor  can  he  avoid  a 
beneficial  contract  made  b}^  his  infant  ward.^  Nor  waive  a 
benefit  to  which  the  ward  is  entitled  b}^  decree.^  For  any 
thing  which  he  does  injurious  to  the  infant  is  a  violation  of 
duty,  and  the  insertion,  in  a  contract,  of  words  importing  the 
title  "  guardian  "  will  not  shield  the  guardian  from  personal 
liability.  In  the  language  of  Chief  Justice  Parsons  :  "As  an 
administrator  cannot  by  his  promise  bind  the  estate  of  the 
intestate,  so  neither  can  the  guardian  by  his  contract  bind 
the  person  or  estate  of  his  ward." "  But  the  rule  is,  after 
all,  a  technical  one  ;  for  the  insertion  of  words  showing  rep- 
resentative capacity  imports  that  the  contract  was  made  as  a 
trustee.  And  on  all  such  contracts,  fairly  made,  the  guardian 
is  entitled  to  reimbursement  from  his  ward's  estate.  It  is 
simply  meant  that  the  person  with  whom  the  guardian  con- 
tracts on  behalf  of  his  ward  may  presume  a  sufQciency  of 
assets.  If  one  acting  in  a  trust  capacity  could  claim  exemp- 
tion from  all  personal  liability',  on  the  ground  that  there  was 
none  of  the  ward's  property  left  in  his  hands  for  payment, 
he  might  abuse  his  privileges.  His  knowledge  of  the  exact 
state  of  the  trust  fund  and  his  power  of  management  would 
give  him  an  immense  advantage  over  the  other  contracting 
party.  Hence  tlie  propriety  of  the  rule  that  guardians  are 
personally  bound  on  their  contracts,  in  dealing  with  others  on 

1  Torry  v.  Black,  58  N.  Y.  158.  *  Jones  v.  Brewer,  1  Pick.  317  ;  Ten- 

2  Blue  V.  Marshall,  3  P.  Wms.  381.  ney  v.  Evans,  14  N.  H.  343. 

3  The  tutor  of  an  infant  cannot  con-         •''Oliver  v.  Houdlet,  13  Mass.  237. 
fess  judgment  or  revive  a  debt  which  is  And  see  Bac.  Abr.  Guardian  (G). 
prescribed.  Clements.  Sigur,29La.Ann.  ^  yjjte  ?-.  Hite,  2  Rand.  409. 

798 ;  Metcalfe  v.  Alter,  31  La.  Ann.  389.  7  Forster  v.  Fuller,  6  Mass.  58. 

31  481 


§  346  THE   DOMESTIC   IlELATIOXS.  [PART  IV. 

the  ward's  behalf,  while  in  turn  they  get  a  recompense  from 
the  estate  by  charging  their  expenses  to  the  ward's  account, 
to  be  passed  upon  by  the  court.  The  insertion  of  words  imply- 
ing a  trust  becomes  therefore  essential  in  determining  whether 
a  contract  was  intentionallj'  made  by  the  guardian  on  his  own 
personal  account.  If  the  guardian  contracts  a  debt  for  his 
ward's  benefit,  he  becomes,  in  this  sense,  personally  liable;  and 
this,  even  though  the  debt  be  for  necessaries.^  Where,  however, 
the  guardian's  contract  with  the  creditor  shows  an  express 
limitation  of  his  liability,  by  mutual  assent,  to  the  assets  of  the 
ward  in  the  guardian's  hands,  it  would  appear  that  the  guar- 
dian incurs  no  personal  liability  beyond  such  assets,^  though  he. 
cannot  thereby  bind  the  ward's  person  or  estate  absolutely.^ 

§  345.  Title  to  Promissory  Notes,  &c.;  Promise  not  Collateral. 
—  The  title  to  promi:?sory  notes  made  payable  to  the  guardian 
is  prima  facie  in  him.  And  this  is  true  though  his  authority 
has  ceased.  Hence  he  may  maintain  suit,  unless  the  defend- 
ant can  show  that  it  has  been  transferred  to  the  successor,  or 
otherwise  disprove  title.*  The  guardian  may,  however,  in- 
dorse over  such  note  on  the  cessation  of  his  authority ;  in 
which  case  the  person  in  lawful  possession  should  sue.  So, 
too,  the  guardian  may,  after  his  ward's  death,  transfer  a  note 
for  the  ward's  money,  payable  to  the  ward  or  bearer,  to  a 
third  person  for  collection.^ 

The  promise  of  a  guardian  to  pay  his  ward's  debts  is  not 
collateral,  within  the  statute  of  frauds ;  and  therefore  it 
need  not  be  expressed  in  writing.^  And  where  a  guardian, 
on  surrendering  his  trust,  transfers  to  his  successor  a  debt  due 
the  ward,  this  is  sufficient  consideration  to  support  the  prom- 
ise of  the  latter  to  pay  the  former  guardian's  debt.'' 

§  346.  Guardian's  Employment  of  Agents.  —  Under  suitable 
circumstances   a   guardian    may  employ  other    agents   than 

1  Simms  v.  Norris,  5  Ala.  42 ;  Rol-         *  Chambles  v.  Vick,  34  Miss.  109 ; 
lins  V.  Marsli,  128  Mass.  116.    And  see  Fountain    v.   Anderson,   33    Ga.   372 ; 
supra,   §§   337,  338,  as  to  the   ward's  King  i'.  Seals,  4-5  Ala.  415. 
necessaries      Sperry  v-  Fanning,  80  111.         ^  Fletcher  v.  Fletcher,  29  Vt.  98. 
371.  6  Roche  v.  Cliaplin,  1  Bailey,  419. 

2  Sperry  v.  Fanning,  80  111.  871.  '  French  v.  Thompson,  6  Vt.  54 ;  of. 
8  Rollins  V.  Marsh.  128  Mass.  116.        47  Ala.  329. 

482 


CHAP.  VI.]      EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  347 

attorneys  at  law,  and  charge  their  compensation  in  his  ac- 
counts.^ 

§  347.  Changes  in  Character  of  "Ward's  Property ;  Sales,  Ex- 
changes, &c.  —  Conversions,  that  is  to  say,  changes  made  in 
the  character  of  trust  property,  from  personal  into  real, 
or  real  into  personal  estate,  are  never  favored,  especially 
where  the  natural  consequence  would  be  to  vary  rights  of 
inheritance.  The  previous  sanction  of  chancery  should  always 
1)e  sought;  and  this  is  only  given  under  strong  circumstances 
of  propriety.  The  same  may  be  said  of  exchanges  of  the 
ward's  property.  Courts  are  reluctant  to  disturb  the  prop- 
erty of  those  who  are  only  temporarily  disabled  from  assum- 
ing full  control.  Sales  of  real  estate  are  in  general  only 
partial,  and  for  necessary  purposes.  But  sales  and  exchanges 
of  personal  estate  are  very  common.  And  the  guardian  may 
sell  personal  estate  for  the  purposes  of  the  trust  without  a 
previous  order  of  court,  provided  he  acts  fairly  and  with  good 
judgment;  though  his  safer  course  is  to  obtain  permission. 
But  sales  of  the  real  estate  of  the  ward  would  be  extremely 
perilous,  if  not  absolutely  void,  unless  previous  authority  had 
been  obtained.  Undoubtedly,  they  could  not  bind  the  ward 
under  such  circumstances.  Nor  is  the  guardian  permitted 
to  sell  first  and  obtain  judicial  sanction  afterwards.  Nor  to 
contract  to  sell  at  his  own  instance.^  So  the  guardian  must 
not  buy  land  with  the  infant's  mone}'  without  the  direction  of 
chancery.  And  having  obtained  permission  to  do  so,  he  is 
bound  to  exercise  good  faith  and  seek  his  ward's  best  interests.^ 

But  a  practical  conversion  takes  place  where  the  guardian 
uses  the  trust  money  in  paying  off  the  ward's  mortgage  debts. 
He  is  bound  to  apply  rents  and  profits  in  keeping  down  the 
interest  on  such  encumbrances  ;  nor  can  he,  in  general,  invest 

1  J?e  Flinn,  31  N.  J.  Eq.  640;  s»j3ra,  Ves.  278;  Holbrook  v.  Brooks,  33 
§  343.  Conn.  347;  Koyer's  Appeal,  11  Penn. 

2  Thacker  v.  Henderson,  69  Barb.  St.  36 ;  Woods  v.  Boots,  60  Mo.  546 ; 
271;  next  c.  Ex   parte    Crutchfield,    3    Yerg.    336; 

3  Macphers.  Inf.  278  et  seq. ;  2  Kent  Dorr,  Petitioner,  Walker  Eq.  145;  Ken- 
Com.  228-230,  and  notes ;  Story  Eq.  dall  v.  Miller,  9  Cal.  591.  See  Harris 
Juris.  §  1.357  ;  3  P.  Wms.  101 ;  Ex  parte  v.  Harris,  6  Gill  &  Johns.  Ill;  Davis's 
Phillips,  19  Ves.  122 ;  Skelton  v.  Ordi-  Appeal,  60  Penn.  St.  118. 

nary,  32  Ga.  266;  Ware  v.  Polhill,  11 

483 


§  347  THE  DOMESTIC   EELATIONS.  [PART  IV. 

personal  estate  more  judiciousl}^  than  in  freeing  the  land  from 
debt  altogether.^  An  order  of  court  is  not  necessary  in  such 
cases,  nor  for  judgment  debts,  but  it  would  be  required  for 
discharging  otlier  than  direct  encumbrances .^  So,  too,  a 
guardian  may  redeem  his  ward's  estate  from  foreclosure.-^ 
The  statutes  of  most  American  States  have  greatly  altered 
the  law  on  the  subject  of  conversions,  so  as  not  onl}^  to  facili- 
tate the  sale  of  real  estate  belonging  to  cestuis  que  trust,  but 
to  enable  their  fiduciaries,  under  judicial  authority,  to  make 
specific  performance  of  contracts  and  to  release  vested  and 
contingent  interests.^ 

Where,  at  the  time  the  court  orders  the  sale  or  purchase  of 
real  estate  by  tlie  guardian,  the  conversion  was  beneficial  to 
the  ward,  it  would  appear  that  the  guardian  is  not  made  lia- 
ble if  such  conversion  afterwards  turns  out  injurious.^  But 
whether  an  order  of  court  would  protect  conduct  notoriously 
imprudent,  as  if  there  should  be  a  sudden  and  marked  de- 
cline in  the  value  of  the  land  from  some  cause  not  within  the 
consideration  of  the  court  at  the  time  of  issuing  the  order, 
and  such  as  would  have  been  sufiicient  for  its  revocation,  and 
the  guardian,  nevertheless,  goes  on  and  makes  the  sale  at  a 
sacrifice,  may  well  be  doubted.^ 

Where  a  guardian  purchases,  on  behalf  of  his  ward,  a 
house  and  lot  expressly  subject  to  a  mortgage  he  becomes 
personally  liable  for  the  amount  of  the  unpaid  debt ;  even 
though  he  had  been  authorized  by  the  court  to  make  the  pur- 
chase. But  the  court  will  afford  him  relief  from  the  ward's 
estate.'^  In  an  English  case,  where  a  guardian  borrowed 
money  to  pay  off  encumbrances  on  the  ward's  estate  and 

1  Macphers.  Inf.  285 ;  March  v.  Ben-  his  trust  to  sell  land  or  foreclose,  under 
nett,  1  Vern.  428;  Jennings  v.  Looks,  a  mortgage  which  he  holds  as  an  in- 
2  P.  Wms.  278.  vestment  for  liis  ward,  in  which  case 

2  Palmes  i>.  Danby,  Pree.inCh.  137  ;  tlie  usual  rules  of  trusteeship  apply. 
8.  c.  1  Eq.  Ab.  261 ;"  Waters  v.  Ebral,  Taylor  v.  Ilite,  61  Mo.  142. 

2  Vern.  606.  °  Bonsidl's  Case,  I  Rawle,  266. 

3  Botham  v.  M'lntier,  19  Pick.  .346 ;  '^  See  Harding  v.  Larned,  4  Allen, 
Marvin  v.  Schilling,  12  Mich.  356.   But     426. 

see  Sheahan  v.  Wayne,  42  ]Mich.  69.  ^  Woodward's  Appeal,  38  Penn.  St. 

4  See  next  chapter.     It  may  be  in-     322  ;  Low  v.  Purdy,  2  Lans.  422. 
cumbent  upon  a  guardian  by  virtue  of 

484 


CHAP.  VI.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  348 

promised  to  give  the  lender  security,  but  died  before  doing 
so,  the  court  refused  to  decree  specific  performance ;  though 
the  lender's  money  had  been  duly  applied  for  that  purpose.^ 
Here,  however,  there  had  been  no  written  contract.^ 

§  348.  Limit  of  Guardian's  Responsibility  in  Management.  — 
It  is  a  general  principle  that  acts  done  by  a  guardian  with- 
out authority  will  be  protected  and  will  bind  the  infant,  if 
they  turn  out  eventually  beneficial  to  the  latter ;  but  the 
guardian  does  such  acts  at  his  own  peril.  The  transaction 
will  perhaps  avail  as  between  the  guardian  and  third  par- 
ties ;  but  the  infant,  on  arriving  at  majority,  may  usually 
disaffirm  it  altogether,  and  require  the  guardian  to  place  him 
in  statu  quo.'^  This  risk  is  restricted  to  unauthorized  acts ; 
for  no  guardian  can  be  an  infallible  judge  of  what  is  bene- 
ficial to  his  ward  ;  and  to  make  him  liable  in  ordinary  cases, 
beyond  the  limits  of  good  faith  and  a  sound  discretion,  would 
be  intolerable.  Hence,  as  judicial  control  becomes  relaxed, 
the  guardian's  unauthorized  acts  may  fairly  be  considered  as 
lessening  in  number  and  importance,  save  so  far  as  local  stat- 
utes prescribe  the  rule,  as  they  frequently  do.  Where  the 
guardian  acts  under  judicial  sanction,  what  he  does  in  good 
faith  receives  strong  protection.* 

It  is  to  be  observed,  however,  that  chancery  not  only  pun- 
ishes corruption,  but  treats  with  suspicion  all  acts  and  cir- 
cumstances evincing  a  disposition  on  the  guardian's  part  to 
derive  undue  advantage  from  his  position.  This  rule  is  appli- 
cable to  trustees  in  general.  The  trust  should  be  managed 
exclusively  in  the  interest  of  the  cestui  que  trust ;  or,  in  case 
of  guardianship,  for  the  ward's  benefit.  The  guardian  can- 
not reap  any  benefit  from  the  use  of  the  ward's  money.  He 
cannot  act  for  his  own  benefit  in  any  contract  or  purchase  or 
sale  as  to  the  subject  of  the  trust.  If  he  purchases  in  his 
character  as  guardian,  he  presumptively  uses  his  ward's  funds 
for  that  purpose.     If  he  settles  a  debt  upon  beneficial  terms, 


1  Hooper  v.  Eyles,  2  Vern.  480.  to  the  guardianship,  see  McCall  v.  Flip- 

2  As  to  applying  money  in  payment    pin,  58  Tenn.  161. 

for  land,  where  the  title  vested  prior         *  Macphers.  Inf.  339  ;  infra,  § 

*  See  McElheny  v.  Musick,63  111.  329. 

485 


§  34S  THE   DOMESTIC   RELATIONS.  [PART   ly. 

or  purchases  it  at  a  discount,  the  advantage  is  to  accrue  en- 
tirely to  the  ward's  estate.^  He  cannot  be  permitted  to  place 
himself  in  an  attitude  of  hostility  to  his  ward,  or  derive  any 
benefit  from  the  hitter's  loss.^  Wherever  he  abuses  the  con- 
fidence reposed  in  him,  he  will  be  held  to  a  strict  account- 
ability.^ Where  the  guardian  purchases  for  himself  at  sales  of 
his  ward's  property,  his  conduct  will  be  closely  scrutinized. 
But  where  no  fraud  appears,  and  the  sale  appears  beneficial  to 
the  ward,  the  more  reasonable  doctrine  is  that  the  transaction  is 
sustainable  in  equity,  subject  to  the  ward's  subsequent  election, 
on  reaching  majority,  to  disafiirm  the  sale.  The  guardian,  mean- 
while, takes  the  legal  title  ;  more  especially  if  the  sale  was  con- 
ducted through  a  third  party,  who  afterwards  conveyed  to  him.* 

The  guardian  is  not  to  apply  property  exempt  from  attach- 
ment or  execution  in  satisfaction  of  his  ward's  debts. ^  He 
must  not  mingle  his  own  funds  with  those  of  his  ward. 
Where  there  are  several  wards,  he  must  allot  to  each  his  due 
share  of  expenses  and  profits.  And  if  he  becomes  insolvent, 
and  gives  the  bulk  of  the  property  received  by  him  to  one, 
and  little  or  nothing  to  the  others,  equity  will  still  treat  the 
property  as  belonging  to  the  wards  in  their  proper  shares.^ 

So  far  as  the  guardian  acts  within  the  scope  of  his  powers 
he  is  bound  only  to  the  observance  of  fidelity,  and  such  dili- 

1  White  V.  Parker,  8  Barb.  48;  2  detriment.  Spelraan  v.  Terry,  15  N. 
Kent  Com.  229 ;  Diettrich  v.  Heft,  5  Y.  Supr.  205.  If  the  guardian  has  a 
Barr,  87 ;  Clowes  v.  Van  Antwerp,  4  life  interest  in  land  of  which  the  ward 
Barb.  416 ;  Lefevre  v.  Laraway,  22  is  seised  in  fee,  he  cannot  apply  the 
Barb.  168;  Kennaird  v.  Adams,  11  B.  whole  cost  of  removing  an  encumbrance 
Monr.  102 ;  Sparhawk  v.  Allen,  1  Fos-  to  the  ward,  principal  and  interest, 
ter  (N.  H),  9;  Heard  v.  Daniel,  26  Bourne  y.  Maybin,  3  Woods  C.  C.  724. 
Miss.  451 ;  Jennings  v.  Kee,  5  Ind.  257 ;  *  Ex  parte  Lacey,  6  Ves.  625  ;  Le- 
infra,  c.  9.  fevre  v.  Laraway,  22  Barb.  168  ;  Clior- 

2  Mann  v.  McDonald,  10  Humph,  penning's  Appeal,  32  Penn.  St.  315; 
275.  Hoskins  c.  Wilson,  4  Dev.  &  Batt.  243  ; 

3  As  a  guardian  must  not  reap  un-  Blackmore  v.  Shelby,  8  Humph.  439 ; 
due  benefit,  he  cannot  make  a  collusive  Hudson  i'.  Helmes,  23  Ala.  585.  But 
saleorimprove  the  property  for  his  own  see  Beal  v.  Harmon,  38  Mo.  4.35.  See 
benefit.  Lane  v.  Taylor,  40  Ind.  495.  infra,  ch.  9.  In  Missouri,  under  the 
He  must  not  derive  profit  by  setting  Spanish  laws,  the  guardian  might  pur- 
fictitious  values,  but  account  according  chase  lands  of  his  ward  by  the  court's 
to  true  valuations.  Titles  adverse  to  permission.  M'Nair  r.  Hunt,  5Mo.  300. 
the  ward's  interest  cannot  be  disposed         ^  Fuller  v.  Wing,  5  Shep.  222. 

of  for  his  own  benefit  and  to  the  ward's         ^  Case  of  Hampton,  17  S.  &  R.  144. 

486 


CHAP.  VI.]      BIGHTS   AND   DUTIES    OF    GUARDIANS.  §  349 

gence  and  prudence  as  men  display  in  the  ordinary  affairs  of 
life.  And  in  absence  of  misconduct  his  acts  are  liberally 
regarded.  He  is  .not  liable  for  investments  carefully  made, 
which  afterwards  prove  worthless.  Nor  is  he  responsible  for 
funds  of  which  he  was  robbed  without  his  fault.^  But  for 
any  fraudulent  transaction  to  which  he  lends  iiimself  he  must 
suffer  the  consequences.^  And  if  by  his  negligence  the 
estate  has  suffered  loss,  he  must  make  good  the  deficiency .^ 
What  acts  amount  to  fraud  or  culpable  negligence  will  de- 
pend upon  circumstances.  Ignorance  of  duty  is  equivalent 
to  misconduct,  where  the  ward's  interests  suffer  by  it.*  And 
a  sale  of  the  ward's  rights  of  property  at  a  grossly  inadequate 
price,  upon  the  guardian's  own  responsibility,  may  be  after- 
wards set  aside  at  the  instance  of  the  ward.^  Unauthorized 
acts  which  turn  out  ill  for  the  ward  are  not  protected.^ 

§  349.  The  Same  Subject.  —  The  guardian  of  an  insane 
adult  ward  cannot  lawfully  continue  the  ward's  business,  so 
as  to  charge  it  with  losses  thereby  incurred.'''  But  where  he 
does  so  beneficially,  the  ward,  by  acceptance  of  the  benefits 
after  becoming  sui  juris,  may  be  estopped  from  objecting.^ 

The  guardian's  responsibility  extends  only  to  such  property 
of  his  ward  as  is  accessible  to  him.  But  having  once  come 
into  possession,  or  gained  knowledge  of  his  right  of  posses- 
sion, it  is  his  duty  to  account  for  the  property ;  for  the  law 
then  imposes  upon  him  a  prima  facie  liability.^  And  the  fact 
that  money  was  collected  in  another  State  beyond  his  juris- 
diction cannot  affect  his  obligation  to  account. 

Courts  of  equity  follow  the  ward's  property  whenever 
wrongfully  disposed  of  or  appropriated  by  the  guardian  ; 
and  any  person  in  whose  hands  it  is  found  will  be  held  as 
trustee,  if  it  can  be  shown  that  it  came  into  his  possession 

1  Furman  v.  Coe,  1  Caines'  Cas.  96;         ^  Leonard  i:  Barnum,  34  Wis.  105. 
Atkinson  v.  Whitehead.  6G  N.  C.  296.  6  May  v.  Duke,  Gl  Ala.  53;  McDuf- 

2  McCahan's  Appeal,  7  Barr,  56.  fie  v.  Mclntyre,  11  S.  C.  551. 

3  2  Kent  Com.  230;  Glover  v.  Glo-         "  Corcoran  v.  Allen,  11  R.  I.  567. 
ver,  1  McMull.  153  ;  Royer's  Appeal,         »  jjoyt  v.  Sprague,  103  U.  S.  Supr. 
11  Penn.  St.  36 ;  Wynn  v.   Benbury,  4  613. 

Jones  Eq.  395.  9  Bethune    v.    Green,   27    Ga.   56 ; 

*  Nicholson's  Appeal,  20  Penn.  St.  Howell  v.  Williamson,  14  Ala.  419 ; 
50.  Martin  v.  Stevens,  30  Miss.  159. 

487 


§  350  THE  DOMESTIC  RELATIONS.  [PART   IV. 

witli  notice  of  the  trust.^  The  guardian  himself  may  follow 
his  ward's  property  wherever  he  can  find  it,  whether  into 
the  hands  of  a  former  guardian  or  such  guardian's  transferee.^ 
And  legacies  charged  on  land  and  payable  to  the  ward  on 
reaching  majorit}',  though  paid  meanwhile  to  his  guardian, 
remain  a  lien  on  the  land  until  actually  received  by  the 
ward.2  Innocent  third  parties  are  not  affected  by  the 
guardian's  fraud ;  though  the  usual  barrier  applies  as  to 
negotiable  securities.^  But  in  general,  where  third  parties 
neglect  to  make  reasonable  inquiries  as  to  facts  which  ought 
to  have  raised  suspicion  in  their  minds,  they  may  have  to 
suffer  for  their  imprudence.^ 

§  350.  Management  of  Ward's  Real  Estate  in  Detail.  —  The 
guardian  has  the  management  and  control  of  his  ward's  real 
estate  so  long  as  his  general  authority  lasts.  It  is  his  duty  to 
collect  the  rents  for  the  benefit  of  his  ward,  in  which  connec- 
tion he  may,  according  to  custom,  employ  a  real  estate  agent.^ 
He  may  avow  for  damage  feasant^  sue  for  non-paj-ment  of 
rent,  and  bring  trespass  and  ejectment  in  his  own  name. 
This  was  the  common-law  rule  as  to  guardians  in  socage, 
and  it  still  applies  to  testamentary,  chancery,  and  perhaps 
to  probate  guardians.  The  recognized  principle  is  that  such 
guardians  have  an  authority  coupled  with  an  interest,  and 
not  a  bare  authorit3%"  A  guardian  makes  himself  personally 
liable  where  he  permits  others  to  negligently  collect  the  rents, 
or  occupies  the  premises  himself,  or  suffers  them  to  remain 
unoccupied,  or  wilfully  or  carelessly  permits  others  to  occupy 
them  to  the  ward's  detriment.^ 

1  Carpenter  y.  McBride, -3  Fla.  292.  185;  Pond  i-.  Curtiss,  7  Wend.  45; 
See  McCall  v.  Flippin,  58  Tenn.  IGl.        Huff  v.  Walker,  1  Cart.  193.    And  see 

2  Fox  V.  Kerper,  51  Ind.  148.  O'Hara  v.  Sliepherd,  3  Md.  Ch.  306. 

3  Cato  V.  Gentry,  28  Ga.  327.  But  such   suits   cannot  in  Illinois  be 
*  See  Gum  v.  Swearingen,  69  Mo.     brought  by  a  probate  or  stat-ute  guar- 

553  ;  2  Sclioul.  Pers.  Prop.  23.  dian,  and  under  local  statutes  different 

5  Gale  V.  Wells,  12  Barb.  84 ;  Hun-  rules  apply.     Muller  v.  Benner,  69  111. 

ter  V.  Lawrence,  11  Gratt.  Ill ;  Bevis  108  ;  Wallis  v.  Bardwell,  126  Mass.  366. 

V.  Heflin,  63  Ind.  129.  8  Wills'  Appeal,  22  Penn.  St.  325 ; 

G  Re  Flinn,  31  N.  J.  Eq.  640.  Clark  v.  Burnside,  15  111.  62;  Hughes' 

■?  Shaw  V.  Shaw,  Vern.  &  Scriv.  607;  Appeal,  53  Penn.  St.  500;  Spelmaa  v. 

Bacon  v.  Taylor,  Kirby,  368 ;  2  Kent  Terry,  74  N.  Y.  448. 

Cora.  228;  Terry  v.  Black,  58  N.  Y. 

488 


CHAP.  VI.]       EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  350 

The  guardian  may  also  lease  his  ward's  lands.  But  his 
demise  cannot  last  for  a  longer  period  than  the  law  allows 
for  the  continuance  of  his  trust.  And  it  will  determine  upon 
the  ward's  death  in  any  event.  A  lease  made  by  a  guardian, 
extending  beyond  the  minority  of  his  ward,  was  once  con- 
sidered Void ;  but  the  modern  rule  treats  such  leases  as  void 
only  for  the  excess  at  the  election  of  the  ward.^  The  same 
principles  apply  to  guardians  of  insane  persons  and  spend- 
thrifts. And  the  rule  embraces  assignments  of  the  ward's 
leases.^  The  guardian  must  not  lease  imprudently  or  so  as 
to  sacrifice  his  ward's  interests  for  the  benefit  of  others.^  The 
father,  as  natural  guardian,  cannot  lease  the  land  of  his  child  ; 
nor  can  the  mother ;  nor  can  any  mere  custodian  of  the  per- 
son.* So,  too,  guardians  may  take  premises  on  lease.  And 
though  the  words  "  A.  and  B.,  guardians  "  of  certain  minors, 
are  used  in  a  lease,  the  guardians  are  personally  bound  to 
the  lessor  to  pay  the  rent.^  The  guardian's  power  to  lease 
extends  only  to  usufruct,  and  not  to  exhaustion  of  the  corpus.^ 

Where  a  guardian  cultivates  his  ward's  farm  instead  of 
letting  it  out,  he  is  bound  to  cultivate  as  a  prudent  farmer 
would  his  own  land  ;  otherwise  the  loss  by  depreciation  of 
the  property  in  value  must  be  made  good  by  him.''^  And  for 
losses  occurring  through  his  bad  management  of  his  ward's 
real  estate,  he  cannot  expect  to  be  recompensed.^ 

The  guardian  may  grant  an  easement  in  his  ward's  lands ; 
but  it  is  of  no  avail  beyond  the  limit  of  his  guardianship.^ 
He  may  authorize  the  cutting  of  standing  timber,  and  allow 

1  Bac.  Abr.  Leases  I. ;  2  Kent  Com.  *  Anderson  v.  Darby,  1  N.  &  McC. 
228;  1  Waslib.  Real  Prop.  307;  Rex  369;  Magruder  w.  Peter,  4  Gill  &  Johns. 
V.  Oakley,  10  East,  494  ;  Putnam  v.  323 ;  Ross  v.  Cobb,  9  Yerg.  463.  See 
Ritchie,  6  Paige,  390 ;  Field  v.  Schief-  Drury  v.  Conner,  1  Har.  &  G.  220. 
felin,  7  Johns.  Ch.  150 ;  People  v.  &  Hannen  v.  Ewalt,  18  Penn.  St.  9. 
Ingersoll,  20  Hun,  316 ;  Richardson  v.  See  Snook  v.  Sutton,  5  Halst.  133. 
Richardson,  49  Mo.  29.  See  statute  6  Thus,  a  guardian  cannot  lease  oil 
restriction  in  Muller  v.  Benner,  69  111.  or  mineral  lands  for  the  purpose  of 
108.  working  out  the  product.     Stoughton's 

2  Ross  V.  Gill,  4  Call,  250.  Appeal,  88  Penn.  St.  198. 

3  Knothe  '•.  Kaiser,  5  Thomp.  &  C.  7  Willis  v.  Fox,  25  Wis.  646. 

4;   Thackray's   Appeal,  75  Penn.  St.  **  Harding  v.  Larned,  4  Allen,  426. 

132.  9  Watkins  v.  Peck,  13  N.  H.  360; 

Johnson  v.  Carter,  16  Mass.  443. 

489 


§  351  THE   DOMESTIC  BELATIONS.  [PART  IV. 

others  to  carry  it  away,^  tliongh  not  so  as  to  authorize  a  waste 
of  the  corpus?  But  his  license  should  be  given  in  all  cases 
for  his  ward's  benefit,  and  so  with  the  receipt  of  damages  for 
another's  trespass.^  And  if  trees  are  cut  and  carried  away 
by  his  permission,  so  that  trespass  cannot  be  maintained,  he 
must  make  compensation  to  the  ward.'* 

Guardians  may  assign  dower.  And  it  seems  that  the  guar- 
dian's assignment  will  bind  the  heir,  although  Blackstone  and 
Fitzherbert  state  the  law  otherwise.^  The  deed  of  a  married 
woman,  guardian  of  infants,  in  such  capacity,  does  not  convey 
her  right  of  dower.^  Guardians  may  also  institute  proceed- 
ings for  partition.  Such  proceedings,  in  England,  should  lie 
by  bill  in  equity.''  In  this  country,  the  subject  is  commonly 
regulated  by  statute.  A  guardian  may  purchase  for  his  ward, 
who  is  one  of  the  heirs,  such  portion  of  an  estate  as  the 
other  heirs  refused  to  take  on  partition,  and  the  court  ordered 
to  be  sold.^ 

§  351.  The  Same  Subject.  —  From  what  has  been  already 
said,  it  appears  clear  that  the  guardian  may  execute  all  the 
deeds  and  other  writings  necessary  to  the  fulfilment  of  his 
trust.  But  such  instruments  should  be  signed  in  the  name 
of  his  ward.^  On  the  same  principle  that  agents  and  trus- 
tees are  personally  bound  when  they  exceed  their  authority, 
a  guardian  makes  himself  personally  liable  for  stipulations 
which  he  has  no  right  to  insert  in  a  deed,  and  for  authorized 
covenants,  so  badly  worded  that  they  fail  to  bind  the  ward's 
estate ;  but  not,  it  would  appear,  for  implied  covenants 
merely.^^  Where  a  married  woman  has  executed  a  deed  as 
guardian,  it  would  seem,  on  principle,  that  the  joinder  of  her 
husband  is  unnecessary.^^ 

1  Fonbl.  Eq.  Tr.  82,  n. ;  Thompson     230;  Boyers  v.  Newbanks,  2  Ind.  388 
V.  Boardman,  1  Vt.  367 ;  Bond  v.  Lock-     Clark  v.  Biirnside,  15  111.  62. 

wood,  33  III.  212.  6  Jones  v.  HoUopeter,  10  S.  &  R.  326 

2  Torrj  V.  Black,  58  N.  Y.  185.  "^  Macphers.  Inf.  340. 

8  lb.  8  Bowman's  Appeal,  3  Watts,  369. 

*  Truss  V.  Old,  6  Rand.  656.  9  Hunter  v.  Dashwood,  2  Edw.  Ch 

5  2  Bl.  Com.  136;  Fitzh.  N.  B.  348;  415. 

1    Washb.    Real  Prop.    226;  Jones  i'.  i"  AVhiting  ?;.  Dewey,  15  Pick.  428 

Brewer,  1  Pick.  314  ;  Young  v.  Tarbcll,  Webster  v.  Conley,  46  111.  13. 

37  Me.  509 ;  Curtis  v.  Hobart,  41  Me.  "  Palmer  v.  Oakley,  2  Doug.  433. 

490 


CHAP.  VI.]       RIGHTS    AND   DUTIES   OF   GUARDIANS.  §   851 

It  is  the  guardian's  duty  to  keep  the  ward's  premises  in 
repair,  and  he  may  use  cash  in  his  hands  for  that  purpose 
within  reasonable  limits.^  But  he  cannot  build  or  make  ex- 
pensive permanent  improvements  without  a  previous  order 
from  a  court  of  equity,  which  is  to  be  construed  strictly."'^ 
And  where  he  advances  money  for  such  purposes,  without 
first  obtaining  an  order,  it  would  appear  that  he  is  without  a 
remedy.-^  But  the  court  will  sometimes  protect  such  expen- 
ditures, on  the  ground  that  the  ward  has  received  a  benefit 
thereby.^  And  this  seems  the  more  reasonable  doctrine, 
though  not  clearly  recognized  in  this  country.  Authority 
granted  to  expend  a  certain  sum  for  this  purpose  is  no 
authority  to  exceed  that  sum,  though  it  should  prove  inade- 
quate.^ Nor  has  the  builder  any  lien  upon  the  ward's  real 
estate  for  such  excess.^  A  guardian's  stipulation,  in  his  lease 
of  the  ward's  lands,  to  pay  for  improvements,  will  not  bind 
the  ward.'^ 

Stock  and  farming  utensils  on  the  ward's  farm  are  prima 
facie  the  ward's  property,  as  against  a  guardian  who  has  car- 
ried on  the  farm  in  person.^  But  this  does  not  exempt  from 
attachment  property  of  the  guardian  which  he  purchases  and 
places  upon  the  ward's  lands  ;  for  the  question  of  title  is 
always  open  to  proof .^ 

The  guardian's  power  to  borrow  money  on  a  mortgage  of 
his  ward's  lands,  and  to  create  liens  upon  it  generally,  is 
regarded  with  very  little  favor.  He  could  hardly  make  the 
mortgage  operate  beyond  the  minority  of  his  ward,  at  any 
rate,  if  the  ward,  on  reaching  majority,  elected  to  disaffirm 
it ;  and  his  only  safe  course  would  be  to  secure  the  previous 


An  infant's  guardian  may  accept  deli V-         *  See   Macphers.   Inf.  295;    1  Atk. 

ery   of  a  deed   of  conveyance  to  liis  489;  Hood  v.  Bridport,  11  E.  L.  &  Eq. 

ward.     Barney  v.  Seeley,  38  Wis.  381.  271  ;    Jackson    v.    Jackson,   1    Gratt. 

^  See  Robinson  v.  Hersey,  60  Me.  143. 
225.  5  Snodgrass's  Appeal,  37  Penn.  St 

2  Payne  v.  Stone,  7  S.  &  M.  367;  377. 

Miller's  Estate,  1  Penn.  St.  326.     And         6  Guy  v.  Du  Uprey,  16  Cal.  195. 
see  Powell  v.  North,  3  Ind.  392 ;  Lane         ^  Barrett  v.  Cocke,  12  Heisk.  566. 
V.  Taylor,  40  Ind.  495.  8  Tenney  v.  Evans,  11  N.  H.  346. 

3  Hassard   v.  Rowe,   11   Barb.   22 ;         9  lb.,  14  N.  H.  343. 
Bellinger  v.  Shafer,  2  Sandf.  Ch.  293. 

491 


§  352  THE  DOMESTIC   RELATIONS.  [PAET  IV, 

permission  of  tlie  court ;  which  American  statutes  generally 
permit  to  be  done  on  special  proceedings.^ 

§  352.  Management  of  the  Ward's  Personal  Property  in  Detail. 

—  As  to  personal  property,  one  of  the  first  duties  of  all  trus- 
tees is  to  place  the  property  in  a  state  of  security.  Guardians 
in  this  respect  are  treated  on  the  same  footing  as  other  trus- 
tees. Choses  in  action  should  be  reduced  to  possession  without 
unnecessary  delay  ;^  to  which  we  should  add,  however,  that 
incorporeal  personalty  of  various  kinds  serves  in  modern  times 
for  a  long-continued  investment.  All  claims  should  be  col- 
lected ;  as  prudence  may  require,  concerning  which  the  guar- 
dian has  been  put  upon  inquiry.^  Money  temporarily  in  the 
guardian's  hands  should  be  deposited  in  some  responsible 
bank.  But  wherever  placed  and  however  invested,  the  trust 
funds  should  be  separated,  by  distinguishing  marks,  from  his 
private  property;  exceptions  occurring,  however,  in  some 
cases  of  a  temporary  deposit,  as  for  instance  where  the  money 
is  left  in  one's  iron  safe  with  his  private  valuable  papers  for 
no  unreasonable  length  of  time  and  under  circumstances  im- 
puting to  him  no  want  of  ordinary  prudence  and  diligence, 
either  in  placing  and  keeping  it  there  in  that  condition,  or  in 
pursuing  the  thief  who  took  it  out.  Otherwise,  he  would  be 
personally  liable  for  loss.  Hence,  if  a  guardian  deposits 
money  in  the  bank  to  his  own  account,  and  the  bank  after- 
wards fails,  he  must  suffer  the  consequences ;  *  though  it  is 
otherwise,  where  he  deposits  there  not  imprudently  or  dis- 

1  INIerritt  v.  Simpson,  41  111.  391 ;  Powell  v.  Evans,  5  Ves.  839  ;  Lewson 
Lovelace  v.  Smith,  39  Ga.  130  ;  Wood  v.  Copeland,  2  Bro.  C.  C.  156  ;  Tebbs  v. 
V.  Truax,  39  Mich.  628;  Edwards  v.  Carpenter,  1  Madd.  298 ;  Caney  u.  Bond, 
Taliafero,  34  Mich.  13.  Power  to  sell  6  Beav.  48G.  So  as  to  infant  husband 
and  convey  under  a  trust  does  not  in-  or  wife.  Ware  v.  Ware,  28  Gratt.  670; 
elude  power  to  mortgage.  Tyson  v.  Shanks  v.  Edmondson,  28  Gratt.  804. 
Latrobe,  42  Md.  .325.  As  to  assigning  ^  xhe  guardian  of  a  soldier's  heir 
a  mortgage,  see  next  section.  Where  a  should  ascertain  as  to  his  pension  and 
statute  requires  (as  in  case  of  a  land  bounty  rights,  and  pursue  claims  accord- 
warrant)  a  particular  authority  to  be  ingly.  Clodfelter  v.  Bost,  70  N.  C.  733. 
obtained  for  a  transfer  of  land,  one  who  *  Wren  v.  Kirton,  11  Ves.  377 ; 
purchases  without  ascertaining  that  it  Fletcher  v.  Walker,  3  Madd.  73 ;  Mc- 
has  been  pursued  acts  at  his  peril.  Donnell  t'.  Harding,  7  Sim.  178  ;  Kouth 
Mack  V.  Brammer,  28  Ohio  St.  508.  v.   Howell,  3   Ves.    5G5 ;   Matthews    i'. 

2  See  Hill  Trustees,  447,  and  cases  Brise,  6  Beav.  2-39 ;  Atkinson  v.  White- 
cited  ;   Caffrey  v.  Darby,  6  Ves.  488 ;  head,  66  N.  C.  296. 

492 


CHAr.  VI.]       EIGHTS    AND   DUTIES    OF    GUAEDIANS.  §  352 

honestly  in  his  trust  capacit3^^  So  if  he  purchases  stock  or 
takes  a  promissory  note  in  his  own  name  it  will  be  treated  as ' 
his  own  ;  but  not,  necessarily,  to  the  ward's  prejudice,  for  it 
might  otherwise  be  clearly  identified  and  traced  as  the  ward's 
property .2  And  it  would  appear  that  he  is  not  permitted  in 
such  cases  to  show  by  other  evidence  an  intent  to  charge  his 
ward  ;  for  the  act  itself  is  conclusive  against  him.^ 

The  guardian  may  receive  monej-  secured  to  the  ward  by 
mortgage,  and  discharge  the  mortgage,  before,  at,  or  after 
maturity,  in  the  exercise  of  due  prudence  and  foresight ;  ^  and, 
so,  too,  he  may  extend  or  renew  a  mortgage  note  or  other  note 
on  fair  terms  :  ^  and  on  a  breach  may  sell.^  It  would  appear, 
too,  that,  in  the  absence  of  any  statute  limiting  his  powers,  he 
has,  as  incidental  to  his  office  and  duties,  the  power  to  sell  in 
the  exercise  of  sound  business  discretion,  his  ward's  personal 
property,  except,  perhaps,  as  to  peculiar  incorporeal  kinds." 

In  collecting  outstanding  debts  or  prosecuting  claims  a  rea- 
sonable time  is  to  be  allowed  the  guardian.  Ordinary  pru- 
dence and  diligence  is  the  rule ;  and  for  culpable  negligence 
subjecting  the  estate  of  his  ward  to  loss  he  may  make  himself 
personally  liable,  even  though  the  demand  be  against  a  person 
residino;   in  another   State. ^     He  is  not  to  sue  in  all  cases 


1  Post's  Estate,  Myrick's  Prob.  230.  than  that  of  assigning  a  simple  note  or 

2  Jenkins  v.  Walter,  8  Gill  &  Johns,  bond  upon  personal  security  or  without 
218 ;  White  v.  Parker,  8  Barb.  48  ;  security.  See  preceding  section  ;  Mack 
Knowlton  v.  Bradley,  17  N.  H.  458;  v.  Brammer,  28  Ohio  St.  508.  General 
Brown  I'.  Dunham,  11  Gray,  42;  Beas-  guardians  do  not  represent  their  in- 
ley  !'.  Watson,  41  Ala.  234.  fant  wards  in  foreclosure  proceedings. 

3  Brisbane   v.   Bank,  4  Watts,  92;  Sheahan  u.  Wayne,  42  Mich.  69. 
Stanley's  Appeal,  8  Barr,  431.  Stock  and  its  transfer  follow  pecu- 

*  Chapman  v.  Tibbits,  33  N.  Y.  289 ;  liar  rules.    Shares  of  stock  standing  in 

Smith  V.  Dibrell,  31  Tex.  239.  the  name  of  "  A.  B.  guardian"  cannot 

s  Willick  V.  Taggart,  17  Hun,  511.  be  sold  so  as  to  compel  the  company  to 

6  Taylor  v.  Hite,  61  Mo.  142.  recognize  the  transferee,  without  order 

"  See  Wallace  v.  Holmes,  9  Blatchf.  of  the  court.     Dela  IMontagnie  r.  Union 

67  ;  supra,   Humphrey   v.   Buisson,   19  Ins.  Co.,  42  Cal.  290. 

Minn.  221.    A  guardian  cannot,  in  South  A  guardian's  sale  of  cotton  on  credit, 

Carolina,selland  assign  his  ward's  bond  taking  the  purchaser's  note  without  se- 

and   mortgage   of  real   estate  without  curity  according  to  business  usage,  does 

judicial   sanction.     McDuiBe  v.  Mcln-  not    necessarily   render  the   guardian 

tyre,  11  S.  C.  551.     Aliter,  probably,  in  liable  if  such  purchaser  turn  out  insol- 

many  States;  though  the  right  to  assign  vent.     State  r.  Morrison,  08  N.  C.  Ib2. 

real-estate   security   is  more  doubtful         8  Potter  v.  Hiscox,  30  Conn.  508. 

493 


§  353  THE  DOMESTIC   RELATIONS.  [PART   IV. 

where  ordinary  modes  of  collection  fail ;  for  the  expenses  of 
litigation  are  to  be  weighed  against  the  chances  of  realizing  a 
benefit.  What  is  a  reasonable  time  will  depend  upon  circum- 
stances. It  is  his  duty  to  contest  all  improper  claims,  though 
presented  by  the  surviving  parent.^  Nor  can  he  with  safety 
permit  the  administrator  of  the  estate  of  his  ward's  fatlier  to 
control  property  of  which  he  is  the  legal  custodian.  And  he 
must  hold  an  administrator  to  account  in  all  cases.^  If  a 
guardian  takes  notes  of  third  persons  in  payment  of  an  in- 
debtedness to  his  ward,  and  afterwards  receives  the  money  upon 
the  notes  and  appropriates  the  money  as  guardian,  the  payment 
is  sufficient.^  In  the  exercise  of  prudence  and  good  faith  a 
guardian  may,  to  save  the  ward  from  loss,  accept  property,  real 
or  personal,  in  settlement  of  the  latter's  debt  or  claim.^  Nor 
is  he  personally  liable,  in  every  case,  on  a  note  received  by 
him  with  other  assets,  which  turns  out  afterwards  to  be  worth- 
less, on  the  ground  that  it  might  have  been  collected  when 
transferred  to  him ;  for  a  guardian's  liability  has  its  reasonable 
limits ;  the  question  is  one  of  ordinary  prudence  and  good 
faith.^  And  money  paid  to  a  guardian  by  mistake  cannot  be 
recovered  again,  if  he  has  paid  it  out  before  receiving  notice  of 
the  mistake.*^ 

§  353.  Investment  of  "Ward's  Funds. —  Like  all  other  trustees, 
the  guardian  is  bound  to  make  his  ward's  funds  productive. 
He  should  see  that  the  capital  which  comes  to  his  hands  is 
well  secured  ;  procure  a  change  of  securities  whenever  neces- 
sary ;  and  invest  surplus  monej^s  where  they  may  draw  interest. 
For  funds  accruing  during  the  continuance  of  his  trust  he  is 
allowed  a  reasonable  time  for  making  his  investment,  usually 
limited  to  six  months,  though  in  some  cases  a  year  is  allowed, 
and  in  others  only  three  months ;  and  he  cannot  suffer  the 
ward's  money  to  remain  longer  idle.'''     But  he  may  keep  a 

1  Exparte  Guernsey,  21  111.  443.  ^  Massey    v.    Massey,    2    Hill  Ch. 

2  Wills's  Appeal,  22  Penn.  St.  325;    492. 

Clark  V.  Tompkins,  1  S.  C.  n.  s.  119.  '^  Worrell's  Appeal,  23  Penn.  St.  44  ; 

3  Jones  V.  Jones,  20  Iowa,  388.  White  v.  Parker,  8  Barb.  48 ;  Karr  v. 
*  Mason  v.  Buchanan,  62  Ala.  110.  Karr,  0  Dana,  3  ;  Pettus  v.  Sutton,  10 
5  Stem's    Appeal,    5    Whart.   472;  Rich.   Eq.   356;  Owen  v.   Peebles,  42 

Waring  v.  Darnall,   10  Gill  &  Johns.     Ala.  338  ;  infni,  §  354. 
127 ;  Love  v.  Logan,  69  N.  C.  70. 

494 


CHAP.  VI,]       RIGHTS    AND   DUTIES    OF   GUARDIANS.  §  353 

suitable  surplus  on  hand  for  current  and  contingent  expenses  ; 
also  sums  too  small  to  be  wisely  invested. ^  And  family  relics 
and  ornaments,  household  furniture  and  farm  stock,  are  gen- 
erally exempted  from  the  rule  of  investment. 

The  investment  of  the  trust  funds  is  therefore  one  of  the 
most  important  duties  of  a  guardian,  both  as  respects  the 
interests  of  his  ward  and  his  own  security.  Testamentary 
guardians,  like  trustees  under  deeds  of  trust,  should  follow 
the  direction  of  the  testator  in  making  investments ;  and  for 
losses  arising  from  such  course  they  are  not  responsible. 
But  their  powers  are  to  be  construed  strictly  ;  and  where  the 
will  is  silent  or  the  directions  are  in  general  terms,  or  mani- 
festly improper,  chancery  rules  of  investment  must  prevail.^ 

In  England,  the  estates  of  infants  and  persons  of  unsound 
mind  under  chancery  guardianship  are  usually  controlled  by 
the  court.  The  general  practice  is  to  get  in  all  the  money 
due  the  ward  and  invest  it  in  the  public  funds.  For  this 
purpose  a  receiver  is  appointed,  if  necessary.  The  court 
will  not  allow  the  ward's  money  to  be  left  out  on  personal 
security,  without  reference  to  a  master  as  to  the  sufficiency 
of  the  security  ;  nor  upon  judgment  security ;  but,  where 
advantageously  invested  on  the  security  of  real  estate,  in 
Great  Britain,  the  court  will  not  disturb  the  investment. 
The  statute  of  4  and  5  Will.  IV.  c.  29,  authorizes  invest- 
ments on  real  security  in  Ireland,  under  the  direction  of  the 
English  Court  of  Chancery.^ 

In  this  country,  the  management  of  the  personal  estate  of 
infants  and  others  is  usually  left  to  their  guardian,  subject  to 
recognized  principles  of  law  which  he  is  bound  to  follow. 
There  are  statutes  in  many  States  which  authorize  the  invest- 
ment by  fiduciaries  only  in  particular  kinds  of  securities.  In 
others,  it  is  provided  that  investments  may  be  made  in  any 
manner  for  the  interest  of  all  concerned.*     It  is  the  general 


1  Baker  v.  Richards,  8  S.  &  R.  12  ;  3  Macpliers.  Inf.  266  ;  Hill  Trustees, 
Knowlton  v.  Bradley,  17  N.  H.  458.  395 ;  Norbury  i\  Norbury,  4  Madd.  191, 

2  Macpliers.  Inf.  266.    And  see  Hill  *  Gary  v.  Cannon,  3  Ired.  Eq.  64. 
Trustees,    368-384,     and     Wharton's  See  State  v.  Harrison,  75  N.  C.  432. 
notes. 


495 


§  353  THE  DOMESTIC   RELATIONS.  [PAET   IV. 

rule  that  either  public  securities  or  real  securities  are  to  be 
preferred. 1  Investments  in  stock  of  the  United  States,  or 
of  the  State  having  jurisdiction  of  the  ward,  are  doubtless 
proper;  so,  mortgage  investments  on  first-class  property 
within  the  State,  and  city  and  town  securities,  are  frequentl}'- 
designated  as  suitable  investments.  But  the  stock  of  railwa}-, 
navigation,  and  other  incorporated  companies,  whose  stability 
is  uncertain,  are  unsuitable,^  For  small  sums  of  money  sav- 
ings banks  of  good  repute  may  be  found  convenient.  United 
States  Bank  stock  has  been  considered  a  proi)er  investment.'^ 
And  while,  in  some  States,  fiduciary  officers  are  strictly  limited 
in  their  power  of  investments ;  in  others,  as  Massachusetts, 
there  is  no  favored  stock  or  security,  and  they  are  only  bound  to 
exercise  reasonable  prudence  and  sound  faith.'*  But  for  losses 
which  are  without  the  protection  of  this  rule,  tlie  guardian 
or  other  trustee  is  always  personally  responsible.  And  loans  on 
the  credit  of  a  single  individual  (even  though  it  be  the  child's 
parent^)  or  a  single  firm,  without  other  security,  or  with 
very  doubtful  security,  are  not  sustained.^  Nor  investments 
in  indorsed  notes  of  parties  of  bad  or  doubtful  standing ;  "^ 
though  the  rule  would  be  otherwise  if  their  credit  is  good. 
Loans  to  individuals  with  good  collateral  security  are  upheld, 

1  Gray  u.  Fox,  Saxt.  259 ;  Worrell's  238.  And  see  Watson  v.  Stone,  40 
Appeal,  9  Barr,  508  ;  Nance  v.  Nance,     Ala.  451. 

1  S.  C.  N.  s.  209.  *  Konigmaclier's    Appeal,   1   Penn. 

2  Worrell's  Appeal,  23  Penn.  St.  207;  Kimball?;.  Perkins,  130  Mass.  141 ; 
44  ;  Allen  v.  Gaillard,  1  S.  C.  n.  s.  279  ;  Lovell  v.  Minot,  20  Pick.  116  ;  Nance 
French  v.  Currier,  47  N.  H.  88.  There  v.  Nance,  1  S.  C.  n.  s.  209 ;  Swartwout 
are  a  number  of  recent  decisions  in  Vir-  v.  Oaks,  52  Barb.  622. 

ginia,  North  Carolina,  South  Carolina,         ^  WyckofE  v.   Uulse,  32  N.  J.  Eq. 

Alabama,  and  other  Southern  States,  of  697. 

temporary  importance,  which  relate  to         "  Smith  v.  Smith,  4  Johns.  Ch.  281 ; 

investments   in    what  are    known    as  Clay  y.  Clay,  3  Met.  (Ky.)  548;  Boy- 

"  Confederate    securities"   and    settle-  ett  ?'.  Hurst,  1  Jones  Eq.  166  ;   Clark  y. 

ments  by  a  guardian  in   the  so-called  Garfield,  8  Allen,  427  ;   Gilbert  v.  Gup- 

"  Confederate  money."     Among  these  til,  34  111.  112  ;  Lee  i'.  Lee,  55  Ala.  590. 

see  Powell  (;.  Boon,  43  Ala.  459;  White  But   see  State  v.  Morrison,  68  N.   C. 

V.  Nesbit,  21  La.  Ann.  600;  Brandy.  162. 

Abbott,  42  Ala.  499  ;  Sudderth  r.  Mc-         ^  Harding  v.  Lamed,  4  Allen,  426 ; 

Combs,  65  N.   C.  186;  Coffin  y.  Brara-  Fletcher  v.  Fletcher,  29  Vt.  98;  Cov- 

litt,  42  Miss.  194.  ington  v.  Leak,  65  N.  C  594;  Hurdle 

8  Boggs  V.  Adger,  4  Rich.  Eq.  408 ;  v.  Leath,  63  N.  C.  597. 
contra,   Smith  v.  Smith,  7  J.  J.  Marsh. 

496 


CHAP.  VI.]      EIGHTS   AND   DUTIES   OF  GUARDIANS.  §  354 

in  the  absence  of  a  restrictive  statute.^  Speculative  invest- 
ments may  be  made  by  prudent  men  in  their  own  business, 
but  not  by  fiduciaries  with  their  trust  funds.  If  a  loan  by 
the  guardian  be  sanctioned  by  the  court  he  is  not  liable  for 
loss,  unless  it  arises  from  his  subsequent  default.^  But  the 
assent  of  the  court  must  be  in  writing  and  of  record ;  not 
given  by  parol.^ 

§  354.  Same  Subject ;  -when  Chargeable  -with  Interest.  — 
Negligence  and  unreasonable  delay  in  the  investment  of 
trust  funds  is  a  breach  of  official  duty  for  which  the  trustee 
is  held  answerable.  And  where  the  guardian  carelessly 
suffers  cash  balances  to  remain  idle  in  his  hands,  or  mingles 
the  ward's  money  with  his  own,  he  is  chargeable  with  inter- 
est, and  in  case  of  misconduct  with  compound  interest.*  But 
he  must  be  allowed  a  reasonable  time  under  all  the  circum- 
stances of  the  case.^  It  remains  a  disputed  question  whether 
the  guardian  should  be  charged  with  compound  interest  for 
mere  delinquency  ;  but  it  seems  that  he  should  not.  In  some 
cases  a  trustee  has  been  so  charged,  because  the  trusts  under 
which  he  acted  required  him  to  place  the  fund  where  more 
than  simple  interest  would  have  accumulated.  In  others,  the 
principle  seems  to  have  been  to  exact  it  as  a  penalty  for  his 
misconduct  in  deriving,  or  seeking  to  derive,  some  pecuniary 
advantage  from  the  trust  money,  or  in  squandering  it.  In  all 
cases  courts  of  chancery  have  exercised  a  liberal  discretion,  ac- 
cording to  the  circumstances.^  The  rule  announced  by  Chan- 
cellor Kent  cannot,  therefore,  be  considered  quite  accurate." 

1  Lovell  w.  Minot,  20 Pick.  116.  See  3  Met.  (Ky.)  548.  But  see  Eeynolds 
Torry  v.  Frazer,  2  Redf.  486.  v.  Walker,  29  Miss.  250. 

2  O'Hara  v.  Shepherd,  3  Md.  Ch.  ^  Tliere  are  extreme  cases  in  which 
306';  Bryant  v.  Craig,  12  Ala.  354;  Car-  a  guardian  would  not  be  charged,  for 
lysle  I'.  Carlysle,  10  Md.  440.  delaying  to  invest,  even  with  simple 

3  See  Newman  v.  Reed,  50  Ala.  interest,  it  appearing  on  proof  that  he 
297.  could  not  do  so  by  exercising  due  dili- 

*  Barney  i'.  Saunders,  16  How.  535;  gence.     Brand  r.  Abbott,  42  Ala.  499; 

Swindall  v.  Swindall,  8  Ired.  Eq.  285  ;  Ashley  v.  Martin,  50  Ala.  537. 
Knott  V.  Cottee,  13  E.  L.  &  Eq.  304 ;  6  gge  language  of  the  Master  of  the 

Stark  V.  Gamble,  43  N.  H.  465  ;  Mackin  Rolls,  in  Jones  v.  Foxall,  13  E.  L.  &  Eq. 

V.  Morse,  130   Mass.   439;  Snavely  v.  140;  Roche  j;.  Hart,  11  Ves.  58. 
Harkrader,   29   Gratt.   112;    Tyson    v.  1  2   Kent  Com.    '231,   and   note  ib., 

Sanderson,  45  Ala.  304 ;  Clay  v  Clay,  with  citation  of  authorities.     And  see 

32  407 


§  354  THE  DOMESTIC   BELATIONS.  [PAET   IV. 

Where  a  guardian  speculates  with  his  ward's  funds,  or  em- 
ploys them  in  his  own  business,  he  must  account  for  the 
profits.  As  this  is  a  clear  breach  of  trust,  compound  interest 
is  properly  chargeable.  It  would  seem  to  be  the  true  rule  in 
equity,  where  large  profits,  which  ought  to  have  gone  to  the 
credit  of  the  cestui  que  trusty  are  appropriated  by  his  trustee, 
to  require  them  to  be  turned  in  on  account;  and  to  impose 
compound  interest  instead  as  a  penalty  only  when  there  are 
practical  difficulties  in  the  way  of  enforcing  such  a  rule  or  as  a 
beneficial  option  to  the  ward.  For  it  is  obvious  that  in  this 
country  a  guardian  can  frequently  afford  to  pay  compound 
interest  for  the  use  of  liis  ward's  money,  if  he  is  suffered  to 
retain  the  full  profits  of  the  speculation  for  himself.^  Where 
he  loans  his  ward's  money  on  usurj',  and  thereby  forfeits  the 
whole  debt,  he  is  liable  for  principal  and  interest.^  But  this 
need  not  prevent  him  from  investing  at  more  than  the  ordi- 
nary or  "  legal"  rate,  if  it  be  in  reality  lawful ;  and  in  some 
States  he  is  bound  to  do  so.^  It  has  been  held  that  where 
a  guardian  employs  his  ward's  money  in  a  business  which  he 
allows  his  son  to  manage,  with  a  portion  of  the  profits 
as  his  compensation,  and  the  transaction  is  free  from  fraud, 
he  is  not  chargeable  with  his  son's  share  of  the  profits.'^ 

While  in  many  States  the  guardian's  investment  of  his 
ward's  moneys  in  stocks  is  illegal,  and  it  must  be  his  loss  if 
the  stock  turn  out  unproductive,  the  tendency  of  the  deci- 
sions is  to  make  him  liable,  in  case  the  stock  proves  produc- 
tive, for  the   highest  market  value  of  the  shares  which  he 

Roche  V.  Hart,  1 1  Ves.  58 ;  Robinson  invest  and  should  not  be  charged  inter- 
V.  Robinson,  9  E.  L.  &  Eq.  70  ;  Light's  est  unless  he  lias  made  use  of  the  fund 
Appeal,  24  Penn.   St.   180  ;   Kenan  v.  or  earned  interest.     Re  Mott,   20  N.  J. 
Hall,  8  Ga.  417  ;   Greening  v.  Fox,  12  Eq.  509.     Mere  failure  of  the  guardian 
B.  Monr.    187  ;   Bentley  i'.   Shreve,   2  to  file  annual  accounts  does  not  render 
Md.   Ch.    215;    Pettus   v.    Clauson,   4  him  liable  for  compound  interest.    Ash- 
Rich.  Eq.  92 ;  Farwell  v.  Steen,  46  Vt.  ley  v.  Martin,  50  Ala.  537. 
678;  Finnell  v.  O'Neal,  1.3  Bush.  176.  ^  Spear  v.  Spear,  9  Rich.  Eq.  184; 
Compound  interest  should  cease  on  the  Lowry  v.  State,  64  Ind.  421 ;  Reed  v. 
ward's  arriving  at  full  age,  and  simple  Timmins,  52  Tex.  84. 
interest  only  charged  tliereafter.     Tan-          ^  Draper  v.  Joiner,  9  Humph.  612, 
ner  v.   Skinner,  11  Bush,    120.     And,  ^  Foteaux  y.  Le  Page,  6  Iowa,  123 ; 
pending  a  judicial  decree  upon  his  final  Frost  v.  Winston,  32  Mo.  489. 
balance,  he  is  under  no   obligation  to         *  Kyle  i:  Barnett,  17  Ala.  306. 

498 


CHAP.  Vii.]       SALES   OF   WAED'S   EEAL   ESTATE.  §  355 

realized  or  might  have  realized,  and  for  all  the  dividends  he 
received  from  them.^ 

Where  the  trust  property  is  already  invested  on  securities 
which  would  not  be  sanctioned  by  the  court,  the  question 
sometimes  arises  how  far  it  is  the  guardian's  dut}^  to  call 
them  in  and  invest  in  other  securities.  In  this,  and  in  mat- 
ters of  reinvestment,  the  same  principles  would  be  held  to 
apply  as  to  general  trustees.  And  since  such  questions  have 
arisen  almost  always  under  testamentary  trusts,  and  not  as 
between  guardian  and  ward,  the  reader  is  referred  to  works 
on  that  subject  for  a  full  exposition  of  the  law.  We  will 
simply  add,  that  much  is  to  be  left  to  a  guardian's  discretion, 
in  this  and  all  other  respects,  where  he  manages  the  property 
of  his  ward  on  the  footing  of  a  trustee  ;  and  that  he  will  not 
be  held  to  strict  account  for  losses  occasioned  in  the  exercise 
of  his  authority,  where  he  has  acted  bona  fide,  and  according 
to  the  best  of  his  judgment,  though  not  with  all  the  prompti- 
tude and  skill  which  the  exigencies  of  the  ward's  situation 
demanded.^ 


CHAPTER  VII. 

SALES   OF   THE   WARD's   REAL  ESTATE. 

§  355.  In  Sales  of  Ward's  Personal  Property  a  Liberal  Rule 
Applies.  —  The  nature  of  personal  property,  its  convertibility 
into  cash,  and  the  necessity  frequently  arising  for  changes  of 
investment  in  order  to  make  it  sufficiently  productive,  have 
brought  about  a  flexible  rule  so  far  as  its  purchase  and  sale 
is  concerned,  and  no  actual  conversion  takes  place.  Hence, 
courts  of  chancery  at  the  present  day  assume  considerable 
latitude  in  directing  changes  from  one  species  of  personal 
estate  to   another.     Especially  liberal  must  be  the  rule  in 

1  French  v.  Currier,  47  N.  H.  88 ;  2  ggg  Hill  Trustees,  and  Wharton's 
Lamb's  Appeal,  58  Penn.  St.  142  ;  At-  notes,  379-384.  And  see  Perry  Trusts, 
kinson  v.  Atkinson,  8  Allen,  15.  cs.  14,  21. 

499 


§  356  THE   DOMESTIC   RELATIONS.  [PART  IV. 

those  States  where  the  trustee  is  free  to  invest  in  any  se- 
curities deemed  proper,  provided  he  observes  prudence  and 
good  faith.  Hence,  too,  the  guardian  himself  may  sell  and 
reinvest  his  ward's  personal  estate,  and  make  purchases,  with- 
out a  previous  order  of  court.  But  this  is  to  be  considered 
rather  the  American  than  the  English  rule ,  since,  as  we 
have  seen  in  the  preceding  chapter,  a  guardian's  discretion  is 
strictly  limited  in  England,  and  the  practice  of  the  chancery 
courts  in  such  matters  is  to  control  the  property, 

§  356.  Otherw^ise  as  to  Real  Estate  ;  "Whether  Chancery  can 
sell  Infant's  Lands.  —  Courts  of  chancery,  however,  have  no 
inherent  original  jurisdiction  to  direct  the  sale  of  lands  be- 
longing to  infants.  The  legislative  power  of  a  State  may 
take  the  property  of  its  citizens  in  the  exercise  of  the  right  of 
eminent  domain.  But  a  judicial  tribunal  properly  hesitates 
to  assume  such  functions.  The  common  law,  which  recog- 
nized fully  the  right  of  individuals  to  the  enjoyment  of  their 
possessions,  and  particularly  of  real  estate,  without  disturb- 
ance, appears  to  have  treated  lands  belonging  to  infants  as 
property  which  should  be  preserved  intact  until  the  owner 
became  of  sufficient  age  to  dispose  of  it  according  to  his  own 
pleasure.  Timber  might  be  felled,  and  mineral  ore  dug  out 
and  carried  away;^  but  though  such  acts  constituted  a  techni- 
cal conversion  of  real  estate,  they  were  in  effect  but  a  mode 
of  enjoyment  of  the  rents  and  profits,  and  the  guardian  was 
obliged  to  account  for  these  products  of  the  soil  to  the  in- 
fant owner.  Sales  of  the  ward's  lands  were  authorized  in 
certain  cases,  as  where  there  were  debts  to  be  paid,  encum- 
brances to  be  discharged,  judgments  to  be  satisfied,  and  neces- 
sary repairs  to  be  made  upon  the  premises.  But  in  such  cases 
the  Court  of  Chancery  violated  no  rights  of  ownership  ;  since 
it  is  the  universal  doctrine  that  property  can  only  be  held 
subordinate  to  the  obligation  of  paj-ing  one's  debts.^     Courts 

1  But  see  Stougliton's  Appeal,  88  on  the  infant's  land.  In  re  Howarth, 
Penn.  St.  198.  L.  K.  8  Ch.  41-5.     And  see  De  Witte  v. 

2  See  Shaffner  v.  Briggs,.36  Ind.  55.  Palin,  L.  R.  14  Eq,  251 ,  Nunn  v.  Han- 
On  application  for  maintenance,  chan-  cock,  L.  R.  G  Ch.  850,  as  to  jurisdiction 
eery  has  jurisdiction  to  charge  ex-  in  sale  of  reversionary  interest  of  an 
penses  of  past  maintenance  and  costs  infant. 

500 


CHAP.  VII.]       SALES   OP    WARD'S   REAL   ESTATE.  §  357 

of  chancery  went  no  further,  except  when  authorized  hj  stat- 
utes. They  preferred  that  the  infant's  property  should  re- 
main, while  guardianship  lasted,  impressed  with  its  original 
character.  In  the  settlement  of  estates,  personal  property 
was  to  be  taken  to  pay  what  was  needful  for  support  and 
maintenance,  rather  than  lands.  Not  even  purchases  of  real 
estate  were  favorably  regarded.  And  when  a  sale  became 
necessary,  the  real  estate  was  not  resorted  to  until  other 
means  of  raising  money  had  failed ;  nor  was  a  general  sale 
of  the  lands  ordered  whenever  a  partial  sale  would  suffice. 

On  this  subject  Lord  Hardwicke  observed  as  follows,  in 
Taylor  v.  Philips  :  ^  "  There  is  no  mstance  of  this  court's 
binding  the  inheritance  of  an  infant  by  any  discretionary  act 
of  the  court.  As  to  personal  things,  as  in  the  composition  of 
debts,  it  has  been  done,  but  never  as  to  the  inheritance  ;  for 
that  would  be  taking  on  the  court  a  legislative  authority, 
doing  that  which  is  properly  the  subject  of  a  private  bill." 
This  language  received  the  subsequent  approval  of  Lord 
Chancellor  Hart.^  It  has  also  been  quoted  as  the  recognized 
law  in  this  country.^ 

§  357.  Same  Subject ;  English  Chancery  Doctrine.  —  Hence, 
too,  whenever  the  Court  of  Chancery  has  permitted  purchases 
of  lands,  the  infant's  right  to  affirm  or  disaffirm  on  reaching 
majority,  or,  as  chancery  sometimes  expresses  it,  to  show 
cause,  has  been  reserved.  Lord  Eldon  lays  down  with  great 
caution  the  power  of  the  court  in  changing  the  infant's  prop- 
erty, so  as  not  to  affect  the  infant's  power  over  it  when  he 
comes  of  age.^  And,  whatever  may  be  the  rule  where  there 
is  some  claim  or  debt  to  be  satisfied,  it  appears  that  chancery 
will  decline  ordering  a  sale  of  land  belonging  to  an  infant 
merely  upon  the  ground  that  the  sale  would  be  beneficial 
to  him ;  while  in  any  case,  if  there  be  a  material  error  in 
substance,  and  not   in  form  alone,  a  purchaser  may  object 

1  2  Ves.  23.  186  ;   Ex  parte  Jewett,    16  Ala.  409 ; 

2  Russell  V.  Russell,  1  Moll.  525.  Thompson  v.  Brown,  4  Johns.  Ch.  619; 

3  Rogers  v.  Dill,  6  Hill,  415.     See    Faulkner  v.  Davis,  18  Graft.  651. 

also  the  learned  and  elaborate  opinion         *  Ware  v.  Polhill,  11  Ves.  278;  Ex 
of  the  court,  with  citation  of  English    parte  Phillips,  19  Ves.  122. 
authorities,  in  Williams's  Case,  3  Bland, 

501 


§  359  THE  DOMESTIC   KELATIONS.  [PART  IV. 

to  the  title,  and  the  court  will  discharge  him  from  his  con- 
tract.i 

One  objection  to  conversions  of  property,  namely,  that  the 
laws  of  inheritance  are  not  the  same  in  real  and  personal 
estate,  became  obviated  in  equity  by  treating  the  proceeds 
throughout  as  impressed  with  the  character  of  the  original 
fund;  a  rule  of  large  application  both  in  England  and  Amer- 
ica.2  Another  objection,  upon  which  English  writers  have 
dwelt  at  length,  arose  under  the  law  of  testamentary  disposi- 
tions, which  allowed  infants  to  give  and  bequeath  personal 
estate,  males  at  the  age  of  fourteen,  and  females  at  twelve, 
while  real  estate  could  not  be  devised  under  twenty-one. 
Here  again  chancery  decreed,  whenever  a  conversion  was 
authorized,  that  the  right  of  testamentary  disposition  should 
not  be  thereby  changed.  The  wills  act  of  1  Vict.  c.  26,  dis- 
penses with  this  distinction  in  testamentary  dispositions  al- 
together.^ And  this  latter  objection  never  could  have  arisen 
in  the  courts  of  some  of  the  United  States, 

§  358.  Civil-Law  Rule  as  to  Sales  of  Ward's  Lands.  —  Guar- 
dians and  tutors  of  minors  at  the  civil  law  had  power,  under 
the  direction  of  the  proper  court,  as  it  would  appear,  to  con- 
vey the  estates  of  their  wards. ^ 

§  359.  Sale  of  Ward's  Lands  under  Legislative  Authority  com- 
mon in  the  United  States.  —  Legislative  authority  may  inter- 
vene to  direct  the  absolute  sale  of  an  infant's  lands.  And 
since  the  ownership  of  real  estate  in  this  country  is  vested 
with  comparatively  little  of  that  sanctity  and  importance 
which  the  ancient  laws  of  primogeniture  and  feudal  tenure 
threw  about  it,  and  inasmuch  as  purchases  and  sales  of  land 


1  See  1  Dan.  Ch.  Pract.  3d  Am.ed.  524;  Fluger  v.  Huger,  3   Desaus.  18. 

159,  160;  Calvert  v.  Godfrey,  6  Beav.  But  tliis  is  not  necessarily  the  case  at 

106.  law.     And  such  proceeds  lose  their  ori- 

2  Wheldale  i'.  Partridge,  5  Ves.  396;  ginal  character  and  become  personalty 

Macphers.  Inf.  284;  Story  Eq.  Juris,  on  their  first  transmission,  though  to 

§§  790-793,  and  authorities   cited ;    2  an  infant.     Dyer  v.    Cornell,  4   Barr, 

Kent    Cora.   230,  and   n. ;   Forman   t-.  359. 

Marsh,  1  Kern.  544  ;  Horton  v.  McCoy,  ^  Macphers.  Inf.  278,  and  cases  cited. 

47  N.  Y.  21 ;  Fidler  v.  Higgins,  6  C.  E.  See  Hill  on  Trustees,  390,  n. 

Green,  138  ;  Holmes's  Appeal,  53  Penn.  ^  Menifee  v.  Hamilton,  32  Tex.  495. 
St.  339 ;  March  v.  Berrier,  G  Ired.  Eq. 

602 


CHAP.  VII.]       SALES   OF   WARD's   REAL   ESTATE.  §  360 

are  fast  becoming  matters  of  every-clay  occurrence,  the  legis- 
latures of  most  of  the  United  States  have  seen  fit  to  enact 
laws  for  facilitating  the  sales  of  real  estate  by  fiduciary  officers. 
These  laws  are  comparatively  recent,  and  not  altogether  uni- 
form in  their  provisions.  But  in  most  essential  features  they 
are  alike.  They  constitute  a  permanent  S3^stem.  They  may 
appl}^  not  to  guardians  alone,  but  also  to  trustees,  executors, 
and  administrators.  As  cases  are  constantly  arising  under 
these  laws,  we  shall  here  briefly  notice  some  of  the  principles 
which  have  a  special  bearing  upon  the  sales  of  real  estate,  so 
far  as  guardians  are  concerned,  without  deeming  it  necessary 
to  make  a  minute  analysis,  since  such  statutes  are  purely 
local  and  subject  to  local  variations. 

§  360.  American  Statutes  on  this  Subject  considered.  —  The 
American  statutes  relative  to  the  sale  of  lands  belonging  to 
infants  have  the  following  points  in  common :  First,  an  appli- 
cation to  the  court  on  the  infant's  behalf  upon  which  the 
order  of  sale  issues.  Second,  a  special  bond  to  be  filed  by 
the  guardian.  Third,  the  formal  sale  of  the  land,  usuall}^  at 
public  auction.  Fourth,  the  execution  of  the  deed  to  the 
purchaser.  Fifth,  a  proper  disposition  of  the  proceeds  of  the 
sale.  And  in  some  States  a  judicial  confirmation  of  the  sale 
is  required.  The  judicial  order  of  sale  is  frequently  termed 
a  license  ;  and  the  exact  method  of  procedure  is  indicated  in 
the  statutes  themselves. 

These  statutes,  we  may  add,  not  unfrequently  limit  the 
purpose  for  which  such  sales  may  be  made  ;  as,  for  instance, 
when  the  ward  has  no  other  means  for  his  education  and 
support;  or,  again,  to  pay  proper  debts  ;  or  sometimes  for  the 
purpose  of  investing  the  proceeds  so  as  to  derive  an  income 
more  readily.  And  again,  the  guardian  to  be  authorized  is 
the  probate,  not  the  natural,  guardian,  who  besides  giving  the 
usual  bond  of  guardianship  is  likewise  required  to  give  the 
special  bond  of  ■  which  we  speak  for  the  purposes  of  the  sale.^ 

^  See  Morris  v.  Morris,  2   McCart.  a  guardian,  under  such  statutes,   who 

239  ;    Shanks   v.    Seamonds,  24   Iowa,  can  be  thus  authorized  to  sell.     Den- 

131 ;  People  v.  Circuit  Judge,  19  Mich,  genhart  v.  Cracraft,  .%  Ohio  St.  549. 
296.     Nor  is  the  husband  of  an  infant 

603 


§  360  THE  DOMESTIC  RELATIONS.  [PAKT   IV. 

And  the  legislative  provision  sometimes  extends  to  sales  of 
reversionary  or  equitable  interests  of  minors  ;  or,  again,  is 
limited  to  property  in  which  the  minor  has  the  legal  title. 

As  to  the  disposition  of  the  proceeds,  the  guardian's  con- 
duct is  to  be  regulated  by  the  terms  of  his  license.  If  he  was 
permitted  to  sell  for  the  purpose  of  maintenance  and  support, 
the  moneys  obtained  must  be  so  appropriated  ;  if  for  the  pay- 
ment of  certain  debts,  those  debts  must  be  paid  ;  if  for  invest- 
ment in  other  securities,  he  must  invest  therein  ;  and,  unless 
the  court  leaves  the  investment  to  his  own  discretion,  he  is 
bound  to  invest  as  it  orders.  Any  other  course  of  conduct 
will  subject  him  to  penalties  for  breach  of  his  special  bond. 
He  is  not  justified  in  appropriating  the  proceeds  of  the  sale 
for  the  above  objects  generally,  however  reasonable  it  might 
be  to  do  so  on  other  considerations ;  but  for  the  particular 
object  contemplated  by  the  court  in  granting  the  license.^ 
Not  even  the  ward's  assent  to  his  disposition  of  the  proceeds 
can  exonerate  the  guardian  from  responsibility  to  other  parties 
immediatel}'  interested,  for  such  losses  as  may  occur  by  reason 
of  his  disregard  of  this  rule.^  Nor  is  his  special  bond  dis- 
charged by  the  fact  that  he  produced  the  proceeds  of  the 
sale  in  court,  and  was  then  ordered  to  withdraw  them ;  for 
the  guardian  and  not  the  court  is  the  proper  custodian  of  the 
fund.3  Any  person  not  the  guardian,  authorized  to  sell  in 
such  cases,  is  held  to  account  in  like  manner.* 

The  guardian's  deed  made  under  such  orders  of  court  has 
usually  only  the  effect  of  a  quitclaim,  except  so  far  as  he  may 
have  covenanted  on  his  part  that  he  has  complied  with  the 
statute  requisites  and  that  he  is  the  guardian  duly  authorized; 
and  in  general  he  cannot  bind  his  ward  by  any  covenants  of 
warrant}''  in  the  deed,  though  if  he  choose  to  warrant  he  may 
bind  himself.  The  purchaser  in  such  sales  usually  takes  all 
risks  of  title  except  as  concerns  the  authority  and  good  faith 
of  the  guardian  in  the  premises.^     But  it  is  held  that  caveat 

1  Strong  r.  Moe,  8  Allen,  125.  5  State  /'.  Clark,  28  Ind.  138 ;  Byrrl 

2  Harding  t'.  Larned,  4  Allen,  426.  v.  Turpin.  62  Ga.  591 ;  Holyoke  u.  Clark, 

3  State  V.  Steele,  21  Ind.  207.  54  N.  H.  578. 
*  Pope  V.  Jackson,  11  Pick.  113. 

504 


CHAP.  Vn.]       SALES   OF   WAKD'S   REAL   ESTATE.  §  361 

emptor  does  not  apply  to  the  purchaser  so  as  to  require  him 
in  equity  to  take  the  title  where  actual  representations  of  the 
guardian  as  to  the  goodness  of  the  title  turn  out  untrue.^ 

§  361.  Same  Subject;  Essentials  of  Purchaser's  Title.  —  The 
most  difficult  question  which  arises  under  the  statutes  relating 
to  sales  of  the  infant's  lands,  is  that  of  the  essentials  of  the 
purchaser's  title.  In  what  cases  may  the  guardian's  sale  be 
set  aside  ?  What  statute  provisions  shall  be  regarded  as  im- 
perative, and  what  as  merely  directory?  How  far  will  irreg- 
ularities avoid  the  guardian's  acts,  and  who  is  at  liberty  to 
impeach  them  ?  One  proposition  may  be  laid  down  at  the 
outset.  It  is  that,  inasmuch  as  the  authority  of  the  guardian 
to  make,  and  of  the  court  to  permit,  an  absolute  sale  of  the 
infant's  lands,  is  limited  to  the  grant  of  powers  conferred  by 
the  legislature,  the  terms  of  such  grant  should  be  carefully 
followed.  Sales  made  in  utter  disregard  of  the  precautions 
wisely  interposed  by  law  are  absolutely  worthless.^ 

On  the  other  hand,  it  must  be  admitted  that  there  is  always 
a  hardship  imposed  upon  a  bona  fide  purchaser,  whose  rights 
once  apparently  vested  are  afterwards  pronounced  null.  If 
the  purchaser  took  the  child's  lands  by  collusion  and  fraud, 
or,  being  the  guardian  himself,  abused  his  trust  to  secure  his 
own  profit,  equity  might  justly  suffer  the  transaction  to  be 
set  aside  altogether.  But  a  stranger  who  pays  his  purchase- 
money  honestly  and  fairly  ought  not  to  be  compelled  to  suffer 
for  mere  irregularities  under  the  law.  For  such  fraudulent 
acts  of  the  guardian  as  necessarily  follow  the  consummation 
of  a  bargain  —  as  the  misapplication  of  the  purchase-money 
—  it  is  clear  that  this  purchaser  is  not  liable.^  A  sale,  too,  if 
valid  when  made,  is  not  rendered  invalid  by  the  guardian's 
subsequent  resignation  and  the  appointment  of  another  per- 
son in  his  place.*  As  to  those  acts  which  precede  the  con- 
summation of  a  bargain  the  purchaser  is  put  on  his  guard, 
unless  from  the  very  nature  of  the  case  they  could  not  have 

1  Black  V.  Walton,  32  Ark.  321.  Patton  v.  Thompson,  2  Jones  Eq.  411 ; 

2  Ex  parte   Guernsey,  21  111.   443 ;    Mason  v.  Wait,  4  Scam.  127. 
Barrett  v.  Churchill,  18  B.  Monr.  387 ;         ^  Fitzgibbon  v.  Lake,  29  111.  165. 

*  Herndon  v.  Lancaster,  6  Bush,  483. 

505 


§  361  THE   DOMESTIC    RELATIONS.  [PART   IV. 

come  to  his  observation.  Irregularities  or  omissions  to  com- 
ply with  statute  formalities  seem  to  range  themselves  in  three 
classes  :  those  which  are  immaterial ;  those  whicli  will  render 
a  sale  voidable  by  certain  parties  interested  ;  those  which  go 
to  the  foundation  of  the  sale  and  render  it  void  altogether. 
And  according  to  the  judicial  construction  of  such  irregulari- 
ties and  omissions,  under  the  statutes  and  practice  of  the 
State,  will  the  purchaser's  title  be  determined. 

Where  the  sole  authority  of  the  guardian  is  derived  from 
the  statute,  courts  will  reluctantly  declare  any  part  of  that 
statute  immaterial,  except  in  the  sense  that  the  responsibility 
for  non-compliance  is  thrown  upon  the  guardian  or  the  court, 
and  not  upon  the  purchaser.  Informalities  in  the  recitals  of 
a  bona  fide  deed,  defective  notices,  the  insertion  of  irrelevant 
or  superfluous  matter  in  the  order  of  sale,  errors  of  the  guar- 
dian in  his  allegations  or  of  the  court  in  issuing  process,  have 
been  in  this  sense  ruled  as  immaterial.  But  such  cases  are 
generally  not  so  much  of  statutory  direction  as  of  judicial 
rule  and  common-law  analogies  in  supplying  the  intention  of 
the  legislature  where  the  statute  was  silent.  The  general 
principle  prevails,  that  it  is  wise  policy  to  sustain  judicial 
sales,  and  that  they  should  not  be  declared  void  or  voidable 
for  slight  defects.^ 

Of  mere  irregularities  advantage  may  often  be  taken  by 
direct  proceedings  concerning  the  sale,  as  by  appeal,  while,  to 
attack  the  sale  and  a  purchaser's  title  collaterally,  statute  fun- 
damentals should  have  been  disregarded. 

As  to  irregularities  or  omissions  which  will  render  a  sale 
voidable,  either  the  infant  heir  or  some  other  person  in  inter- 
est has  been  unfairly  dealt  with.  Here  the  privilege  is  ac- 
corded to  the  party  or  parties  wronged,  of  having  the  sale 
set  aside  on  appeal  or  by  direct  proceedings  instituted  for  that 
purpose  ;  but  not  in  a  collateral  manner.  We  need  not  here 
speak  of  the  infant's  right  of  election  in  certain  cases  on  at- 
taining majority .2     Where  in  general  the  guardian  obtained 

1  Fitzgibbon  v.  Lake,  29  111.  165;  Thornton  y.  McGrath,  1  Duv.  349  ;  Ack- 
Cooper   V.   Sunderland,   3  Iowa,   114;    ley  y.  Dygert,  33  Barb.  176. 

'  -  IiiJ'ra,  c.  9 ;  Part  V.  c.  5. 

606 


CHAP.  VU.]       SALES    OF   WAED'S    REAL   ESTATE.  §  361 

his  license  without  duly  notifying  a  person  in  interest,  such 
person  is  allowed  to  have  the  sale  set  aside.  The  purchaser's 
title  is,  however,  good  in  the  mean  time.  Nor  can  any  one 
take  advantage  of  the  defective  proceedings  but  those  whose 
interests  were  injuriously  affected.  A  special  limit  is  fre- 
quently set  by  law  to  proceedings  of  this  kind,  for  the  sake 
of  quieting  titles;  otherwise,  the  ordinary  statute  of  limita- 
tions seems  to  apply .^  Certain  defects  in  a  sale,  too,  are  in 
some  States  (but  not  in  others)  treated  as  cured  by  the  court's 
confirmation  of  the  sale  ;  and  this  more  particularly  where  it 
is  shown  that  the  sale  was  beneficial  to  the  ward.^ 

But  as  to  irregularities  or  omissions  which  render  the  sale 
void  altogether,  there  is  some  confusion  of  authority.  The 
principle  itself  is  a  clear  one,  but  in  the  application  commonly 
made  is  much  difficulty.  Doubtless  the  license  of  a  court 
without  competent  jurisdiction  would  be  void.  But  where 
the  court  has  jurisdiction  (and  this  jurisdiction  is  usually 
vested  originally  in  county  courts  having  probate  jurisdic- 
tion ^)  it  is  material  to  inquire  what  provisions  of  the  statute 
are  positive  and  what  are  declaratory.  In  some  cases,  a  very 
strict  rule  seems  to  have  been  pursued  ;  in  others,  the  con- 
struction has  been  liberal  in  favor  of  the  purchaser's  rights. 
The  execution  of  the  statute  bond  would  seem  to  be  in  gen- 
eral an  essential ;  so,  too,  a  public  sale  at  the  time  set ;  some- 
times the  filing  of  an  oath ;  the  offer  of  such  land  as  the 
license  designates  and  none  other ;  the  delivery  of  a  deed  to 
the  purchaser  and  receipt  of  the  purchase-money.  And  yet 
the  guardian's  failure  to  comply  with  certain  of  these  for- 
malities does  not  invariably  affect  the  purchaser's  title.  The 
difficulty  is  set  at  rest  in  some  States  by  a  statute  provision 
as  to  the  essential  particulars  which  a  bona  fide  purchaser  is 


1  Kimball  v.  Fisk,   39  N.   H.   110  ;  689  ;  Mahoney  v.  McGee,  4  Bush,  527  : 

Bryan  v.  Manning,  6  Jones,  334  ;  Field  Blackman  v.  Baumann,  22  Wis.  611  ; 

V.  Goldsby,  28  Ala.   218;   Dutcher  v.  Pursley  v.  Hayes,  22  Iowa,  11  ;  Gager 

Hill,  29  Mo.  271 ;  Gilmore  v.  Rodgers,  v.  Henry,  5  Sawyer  C.  C.  237. 
41  Penn.  St.  120;  Marvin  u.  Schilling,         3  ^^  to  courts  of  common  pleas,  for 

12  Mich.  356  ;  Kenniston  i;.  Leighton,  such  jurisdiction,  see  McKcever  y.  Ball, 

43  N.  H.  309.  71  Ind.  398 ;  Foresman  v.  Haag,  36  Ohio 

^  See  Emery    v.  Vroman,  19  Wis.  St.  102. 

607 


§361 


THE  DOMESTIC   RELATIONS. 


[PAET  IV. 


bound  to  notice.^  We  can  only  add  that,  in  States  where  the 
legislature  supplies  no  such  provision,  a  purchaser  cannot  feel 
safe  in  disregarding  any  forms  of  procedure  prescribed  in  so 
many  words  ;  and  that,  the  more  explicit  the  language  of  the 
statute,  the  more  careful  he  should  be  in  insisting  on  the  pre- 
scribed course,  especially  as  to  the  sale  and  the  method  of  con- 
ducting it.2 


1  Gen.  Sts.  Mass.  e.  102,  §§  37-48 ; 
Mohr  V.  Tulip,  51  Wis.  487. 

2  Williams  v.  Morton,  38  Me.  47  ; 
Owens  V.  Cowan,  7  B.  Monr.  152; 
Palmer  v.  Oakley,  2  Doug.  433  ;  Stall 
V.  Macalester,  9  Ham.  19  ;  Blackman  v. 
Baumann,  22  Wis.  611 ;  Strouse  i'.  Dren- 
nan,  41  Mo.  289  ;  Brown  v.  Christie,  27 
Tex.  73;  Frazier  v.  Steenrod,  7  Iowa,  339. 

Due  notice  to  those  interested  in 
the  sale  is  essential.  Knickerbocker  v. 
Knickerbocker,  58  111.  399;  Haws 
V.  Clark,  37  Iowa,  355;  Williamson 
V.  Warren,  55  Miss.  199.  But  the  pro- 
ceeding is  in  rem,  in  the  ward's  interest; 
and  hence  notice  to  heirs  is  not  always 
insisted  upon  as  necessary.  Mulford  v. 
Beveridge,  78  111.  455  ;  Gager  v.  Henry, 
5  Sawyer,  C.  C.  237 ;  Mohr  v.  Mahierre, 
101  U.  S.  Supr.  417.  But  notice  to 
the  ward  is  usually  requisite.  Rankin 
V.  Miller,  43  Iowa,  11 ;  Kennedy  v. 
Gaines,  51  Miss.  625 ;  Musgrave  v. 
Conover,  85  111.  374.  Though  the  ward 
need  not  join  in  the  petition.  Cole  v. 
Gourlay,  79  N.  Y.  527.  Jurisdiction  is 
essential.  In  some  States  the  probate 
court  lias  no  authority  to  order  a  sale. 
Summer  v.  Howard,  33  Ark.  490 ;  see 
Foresman  v.  Haag,  36  Ohio  St.  102. 
The  statute  which  prescribes  in  what 
county  application  should  be  made  for 
leave  to  sell,  must  be  regarded.  Spell- 
man  V.  Dowse,  79  111.  GQ;  Mohr  v. 
Tulip,  51  Wis.  487.  There  is  no  juris- 
diction to  authorize  a  mortgage  under 
a  guardian's  petition  which  asks  for  a 
sale.  McMannis  v.  Rice,  48  Iowa,  361. 
The  notice  of  public  sale  with  a  wrong 
time  or  no  time  stated  is  fatally  defec- 
tive. Lyon  V.  Vanatta,  35  Iowa,  521. 
But  cf.  Spring  v.  Kane,  83  111.  580.  A 
sale  bond  is  essential  in  sorce  States. 

508 


Stewart  v.  Bailey,  28  Mich.  251 ; 
Blauser  v.  Diehl,  90  Penn.  St.  350; 
McKeever  v.  Ball,  71  Ind.  398.  But  cf. 
Watts  V.  Cook,  24  Kan.  278 ;  Cuyler 
V.  Wa^'ne,  64  Ga.  78.  As  to  requisites 
and  sufficiency  of  a  petition  for  leave 
to  sell,  there  are  many  decisions  of 
little  more  than  local  consequence. 
Discretion  of  a  county  court  in  ordering 
a  sale  may  be  controlled  usually  on 
appeal.  A  defective  petition  does  not 
usually  affect  the  court's  jurisdiction. 

There  has  been  some  conflict  of 
cases  as  to  whether  a  sale  is  valid  with- 
out the  statutory  notice  to  persons  in 
interest.  But  the  present  inclination 
upholds  the  sale  where  a  proper  petition 
was  presented  to  the  proper  court,  thus 
giving  that  court  jurisdiction  in  rem. 
The  sale  may  then  bind  the  guardian 
and  his  ward,  and  all  having  notice  and 
assenting,  even  though  it  miglit  not 
bind  parties  adversely  interested  having 
no  notice.  For  the  notice  is  not  to  give 
jurisdiction  of  the  subject-matter,  but 
to  get  jurisdiction  of  persons  adversely 
interested.  Mohr  v.  Tulip,  51  Wis.  487, 
and  cases  cited. 

The  place  of  sale  need  not  be  desig- 
nated. Williams  v.  Warren,  55  Miss. 
199.  There  may  be  a  merely  defective 
notice,  so  as  not  to  render  the  sale  void. 
Lyon  I'.  "Vanatta,  35  Iowa,  521.  A  limit 
of  sale,  by  appraisement  or  otherwise, 
is  sometimes  set.  See  Fraser  v.  Zylicz, 
29  La.  Ann.  534.  Statute  requirement 
of  publication  for  successive  weeks, 
how  fulfilled.  De.xter  v.  Cranston,  41 
Mich.  448.  As  to  adjourning  the  sale, 
see  Gager  v.  Henry,  5  Sawyer  C.  C. 
237.  Defective  recitals  in  a  guardian's 
deed  ;  whether  the  deed  must  be  can- 
celled.    Bobb  V.  Barnum,  59  Mo.  394. 


CHAP.  VII.]       SALES   OF    WAED'S   REAL   ESTATE.  §  362 

The  purchaser  may  sometimes  maintain  a  bill  in  equity  for 
rescinding  the  sale  on  account  of  illegality.  But  he  must 
offer  to  surrender  possession  and  to  account  for  the  use  and 
occupation  of  the  premises.^  Defective  proceedings  are  some- 
times cured  by  the  court,  so  as  to  compel  him  to  abide  by  the 
terms  of  the  purchase.  And  it  seems  that  he  may,  by  his 
laches,  forfeit  his  right  of  objection  to  the  sale.^  And  what- 
ever the  favor  to  be  shown  to  a  bona  fide  purchaser  without 
notice  of  fatal  defects  in  the  title  or  misappropriation  of  the 
proceeds,  one  who  connives  at  a  fraud  upon  the  ward  may  be 
held  accountable  for  the  trust  property  or  its  proceeds.^  And 
a  court  may  refuse  to  confirm  or  may  set  aside  a  sale  because 
of  gross  inadequacy  of  price  or  other  unfairness  to  the  ward's 
interest.*  A  guardian  can  only  safely  accept  money  in  pay- 
ment of  the  purchase-price.^ 

Mortgages  are  sometimes  authorized  on  an  infant's  lands, 
under  statute  proceedings  analogous  to  those  empowering  a 
sale  ;  ^  or  the  undivided  interest  of  a  minor  in  land,  as  tenant 
in  common  or  otherwise.'''  Or  a  guardian's  sale  is  made  sub- 
ject to  an  existing  mortgage.^ 

§  362.  American  Statutes ;  Sales  in  Cases  of  Non-Residents. 
—  Where  a  non-resident  guardian  applied  for  the  sale  of 
real  estate  in  Maine  belonging  to  his  ward,  also  a  non- 
resident, the  person  authorized  in  that  State  to  make  the 
sale  was  ordered  to  transmit  the  proceeds  to  such  non- 
Succinct  statements  in  such  deed  are  ^  Cooper  v.  Hepburn,  15  Gratt. 
sufficient.     Worthington  v.  Dunkin,  41     551. 

Ind.  515.  Where  the  court  has  juris-  ^  See  Wallace  v.  Brown,  41  Ind. 
diction,  and  makes  an  order  for  the  436,  where  a  purchaser  paid  to  the 
sale,  a  bona  fide  but  irregular  arrange-  guardian  the  latter's  individual  notes 
ment,  by  the  guardian  with  the  pur-  in  settlement  of  his  purchase.  And  see 
chaser,  as  to  delivery  of  deed  to  carry    post,  c.  9. 

out  the   terms  of    the   sale,    will  not         "•  Mitchell  v.  Jones,  50  Mo.  438. 
re.adily  be  regarded  as  invalidating  the         ^  Brenham    v.    Davidson,   51    Cal. 
sale.    Mulford  v.  Beveridge,  78  111.  455.     352. 

The  act  of  conveyance  is  rather  official         ^  Battell  v.  Torrcy,  65  N.  Y.  294 ; 
than  personal,  and  may  be  carried  out     Noble  v.  Runyan,  85  111.  618. 
by  a  successor  to  the  guardian   who         "  Price,  Matter  of,  G7  N.   Y.  231  ; 
sold.     Lynch  v.  Kirby,  36  Mich.  238.         Schafer  v.  Luke,  51  Wis.  669;  Brenham 

1  Shipp  V.  Wheeless,  33  Miss.  646  ;     v.  Davidson,  51  Cal.  352. 
Loyd  V.  Malone,  23  111.  43;  Anderson  8  As  to  the  effect  of  such  a  sale, 

V.  Layton,  3  Bush,  87.  see  Lynch  v.  Kirby,  36  Mich.  238. 

609 


§  363  THE  DOMESTIC   RELATIONS.  [PAET   IV. 

resident  guardian ;  but  this  would  not  be  the  rule  in  some 
other  States.^  Statutes  have  been  frequently  enacted  by 
which  non-resident  guardians  may  sell  their  ward's  lands, 
on  petition  to  the  court  having  jurisdiction,  with  an  authen- 
ticated copy  of  the  letters  of  guardianship,  and  compliance 
with  the  ordinary  formalities  of  such  sales ;  executing,  per- 
haps, to  the  court  having  control  of  the  funds,  a  bond  for 
their  proper  application.^ 

§  363.  American  Chancery  Rules  as  to  Sales  of  Infant's  Land. 
—  It  is  held  in  New  York  that  the  statutes  of  that  State  provide 
for  judicial  sales  only  in  cases  where  the  legal  title  is  in  the 
infant ;  and  that,  independently  of  such  statutes,  the  Court 
of  Chancery,  having  regard  to  the  infant's  necessities  and 
interest,  may  order  a  sale  of  the  equitable  estate.  On  this 
principle  a  chancery  sale  was  sustained,  as  against  infants, 
where  a  trust  estate  of  infants  in  lands  had  been  transferred 
by  a  contract  made  between  the  guardian  and  purchaser  with 
the  approval  of  the  court.^  Other  sales  of  this  kind  have 
been  allowed  where  the  legal  estate  was  in  the  infant^  The 
course  of  procedure  in  that  State  is  somewhat  peculiar,  and 
English  chancery  precedents  are  strongly  favored.  It  is  held 
that  the  part-owner  of  lands  in  which  an  infant  is  interested 
ought  not  to  be  allowed  to  make  the  sale.^  So,  too,  the  sale 
of  a  court,  contrary  to  the  provisions  of  a  devise,  is  utterly 
void.^  And  in  a  late  case  the  chancer}'-  jurisdiction  over  the 
land  of  infants  is  expressed  in  quite  guarded  language,  and 
apparently  to  the  effect  that  the  court  has  no  inherent  original 
jurisdiction  to  direct  such  sales,  but  that  authority  must  be 
derived  from  statute.  Here,  real  estate  owned  by  tenants  in 
common,  of  whom  an  infant  was  one,  was  sold  under  and  in 
pursuance  of  a  judgment  in  a  partition  suit  instituted  by 
others  of  the  tenants  in  common  ;  and  it  was  held  that  the 


1  Johnson   v.   Avery,   2   Fairf.   99;  *  7«  re  Hazard,  9  Paige,  365. 
contra,    Clay   v.   Brittinghaiu,   3i   Md.  &  In  re  Tillotsons,  2  Edvv.  Ch.  113. 
675.  «  Rogers  v.  Dill,  6  Hill,  415.     See 

2  McClelland  v.  McClelland,  7  Baxt.  also  Matter  of  Ellison,   5  Johns.  Ch. 
210.  261 ;    Sutphen    v.    Fowler,    9    Paige, 

3  Woods  V.  Mather,  38  Barb.  473 ;  280. 
Anderson  v.  Mather,  44  N.  Y.  249. 

510 


CHAP.  VU.]      SALES   OF   WARD's   REAL  ESTATE.  §  364 

portion  of  the  proceeds  belonging  to  the  infant  remained  im- 
pressed with  the  character  of  real  estate,  and  as  such  did  not 
pass  under  the  infant's  will.^  In  some  other  States,  chancery, 
by  virtue  of  its  general  jurisdiction  over  infants  and  their  es- 
tates, claims  similar  power  to  decree  the  sale  of  an  infant's 
lands,  whether  held  under  a  deed  or  will,^  and  thus  to  dispose 
even  of  contingent  estates  should  occasion  arise. 

There  are,  indeed,  numerous  American  decisions,  in  which 
the  rights  of  infants  in  lands  are  protected  in  equity,  so  far 
as  to  give  the  infants  opportunity  to  confirm  or  set  aside  the 
sale,  and  prevent  them  from  being  bound  by  a  transaction  to 
which  they  could  not  be  parties  in  their  own  right.  Instances 
are  found  in  administrators'  settlements  to  which  the  infant 
heir  was  not  a  privy,  sales  under  decree  to  persons  who  had 
never  paid  the  purchase-money,  and  fraudulent  transactions.^ 
It  is  held  that  chancer}-  cannot  interfere  with  the  lands  of 
infants  unborn.*  But  sales  made  in  fraud  of  an  infant  are 
sometimes  adopted  and  confirmed  by  a  court,  with  the  pur- 
chaser's assent,  as  being  beneficial  to  the  infant.^  After  des- 
truction of  the  records  and  lapse  of  time,  the  sale  may  be 
presumed  to  have  conformed  to  essentials.^  And  as  we  shall 
see  hereafter,  length  of  time  and  laches  on  the  infant's  part 
after  reaching  majority,  or  his  election  not  to  avoid,  may 
often  render  the  transaction  unimpeachable.'^ 

§  364.  Guardian's  own  Sale  not  binding ;  Public  Sale  usually 
required.  —  In  general,  a  guardian's  sale  of  real  estate  belong- 

1  Horton  v.  McCoy,  47  N.  Y.  21.  &  ^t  parte  Kirkman,  3  Head,  517. 
And  see  Cole  v.  Gourlay,  79  N.  Y.  527.  6  Spring  v.  Kane,  8G  111.  580. 
Guardian  summarily  ordered  to  refund  ^  See  vifra,  c.  9 ;  Infancy,  clis.  5 
the  excess  of  purchase-money  in  case  and  6  ;  Havens  v.  Patterson,  43  N.  Y. 
of  an  error  as  to  the  extent  of  the  218 ;  Parmele  v.  McGinty,  52  Miss, 
infant's  lands.  Matter  of  Price,  G7  475.  Infant's  title  under  statute  sale, 
N.  Y.  231.  wlien    actually   divested,    see    Doe   v. 

2  Goodman  v.  Winter,  64  Ala.  410 ;  Jackson,  51  Ala.  514  ;  SliaflTner  v.  Brings, 
Redd  V.  Jones,  30  Gratt.  123.  86  Ind.  55 ;  MacVey  v.  McVey,  51  Mo. 

3  Williams  v.  Duncan,  44  Miss.  406;  Schafer  v.  Luke,  51  Wis.  669. 
376 ;  Jones  v.  Billstein,  28  Wis.  221 ;  Land  held  not  taxable  to  purchaser 
Williams  v.  Wiggand,  53  111.  233 ;  until  conveyance  is  executed,  con- 
Terry  V.  Tuttle,  24  Mich.  206 ;  Phillips  firmed,  &c.,  even  though  by  its  terms 
V.  Phillips,  50  Mo.  604;  Walke  v.  dating  back.  Ordway  v.  Smith,  53 
Moody,  65  N.  C.  699.  Iowa,  589. 


*  Downin  v.  Sprecher,  35  Md.  474. 


611 


§  365  THE   DOMESTIC   RELATIONS.  [PART   IV. 

ing  to  liis  minor  ward,  without  an  order  from  the  court  either 
by  virtue  of  statute  or  chancery  jurisdiction,  is  not  binding 
upon  the  minor ;  and  such  ward's  interest,  legal  or  equitable, 
can  only  be  divested  by  a  public  sale  under  proper  judicial 
sanction  ;i  though  discretion  is  sometimes  given  the  court  as 
to  ordering  and  sanctioning  a  private  sale.^ 


CHAPTER   VIII. 

THE   guardian's   BOND,   INVENTORY,   AND   ACCOUNTS. 

§  365.  Guardian's  Recognizance  ;  Receiver,  &c. ;  English  Chan- 
cery Rule.  —  It  is  the  practice  of  the  English  Court  of  Chan- 
cery to  require  chancery  guardians  appointed  on  petition 
without  suit  to  enter  into  recognizance  to  account.  When 
reference  is  made  to  a  master  on  the  original  petition  for 
guardianship,  he  is  directed  to  make  a  report  approving  of  the 
security  offered  as  well  as  of  the  person  desiring  the  appoint- 
ment. On  this  report  the  court  proceeds  to  act.  A  recogni- 
zance with  sureties  is  usually  taken ;  but  the  court  uses  its 
discretion  ;  and  sometimes  the  personal  recognizance  of  the 
guardian  is  deemed  sufficient.  This  recognizance  is  vacated 
when  the  infant  comes  of  age.  No  recognizance  in  modern 
practice  is  required  from  the  guardian  of  the  person  who  is 
appointed  where  the  infant  has  been  made  a  ward  of  chancery 
during  the  pendency  of  a  suit.  Nor  is  it  given  by  guardians 
selected  l)y  the  court  for  special  purposes  ;  as,  for  instance,  to 
give  formal  consent  to  an  infant's  marriage  under  Lord  Hard- 
wicke's  act.  In  a  word,  the  chancery  rule  appears  to  be  that 
guardians  of  the  estate  give  security  for  the  performance  of 
their  trust,  but  guardians  of  the  person  none.  Special  cir- 
cumstances may,  however,  arise  for  requiring  recognizance 
from  the  latter.^ 

1  Supra,  §  356  ;  Wells  v.  Chaffin,  60  2  Maxwell  v.  Campbell,  45  Ind.  361. 
Ga.  677 ;  Morrison  v.  Kinstra,  55  Miss.  ^  Macphers.  Inf.108, 348, 553 ;  2  Kent 
71.  Com.  227. 

512 


CHAP.  VIII.]  GUAKDIAN's   BOND,    ETC.  §  366 

Since  the  active  management  of  the  infant's  estate  is  fre- 
quentl}'  entrusted  to  a  receiver,  selected  as  an  officer  of  the 
court,  the  hitter  is  also  bound  to  account  annually  and  pay 
his  balances  into  court.  For  performance  of  these  duties  he 
gives  proper  security  ;  and  he  is  allowed  a  salary  for  his 
services.^ 

§  366.  American  Rule ;  Bonds  of  Probate  and  other  Guardians. 
—  In  this  country,  as  we  have  seen,  most  guardians  of  the 
estate  are  what  may  be  termed  probate  guardians,  deriving 
their  authority  under  the  appointment  of  courts  which  most 
resemble  the  old  ecclesiastical  courts  of  England.  The  prac- 
tice which  has  grown  up  in  most  of  the  States,  as  well  as  our 
statute  law,  places  guardians,  therefore,  in  many  respects,  on 
the  same  footing  as  executors  and  administrators.  Like  such 
officers,  they  give  bonds,  file  inventories,  and  render  regular 
accounts  to  the  court ;  and  the  same  principles  which  apply  to 
the  one  class,  in  these  respects,  apply  also  to  the  other. 

A  probate  guardian,  before  receiving  from  the  court  his  let- 
ters of  appointment,  is  obliged  to  give  bond,  with  good  secu- 
rity, for  the  faithful  performance  of  his  trust.  As  such  guardian 
is  entrusted  with  both  the  person  and  estate  of  his  ward,  the 
language  of  his  bond  should  be  framed  accordingly.  In  some 
States  the  statute  prescribes  the  terms  substantially  as  fol- 
lows :  To  make  a  true  inventory  of  the  ward's  estate  which 
shall  come  to  his  possession  or  knowledge  ;  to  manage  the 
property  according  to  law  and  the  best  interests  of  the  ward, 
and  to  discharge  his  trust  faithfully  in  relation  thereto  ;  to 
render  regular  accounts  to  the  court  ;  and,  finally,  to  make 
due  settlement  with  the  ward  or  other  person  lawfully  enti- 
tled at  the  expiration  of  his  trust.  The  bond,  in  case  of  an 
infant,  stipulates  for  a  faithful  discharge  of  duties  as  to  cus- 
tody, education,  and  maintenance  ,  but  where  the  w^ard  is  an 
adult  insane  person  or  spendthrift,  for  custody  and  mainten- 
ance only  .2 

The  penal  amount  of  the  guardian's  bond,  as  in  other  cases, 

1  Macphers.  Inf.  266.  As  to  chan-  Morrell,  4  Paige,  44  ;  Minor  v.  Betts,  7 
eery  practice  in  New  York,  see  In  re    Paige,  596. 

-  Smith's  Prob.  Pract.  (Mass.)  88, 89. 

33  '       513 


§  366  THE   DOMESTIC   RELATIONS.  [PART   IV. 

is  usually  fixed  at  double  the  amount  of  the  estate  to  be  ac- 
counted for.  The  sureties  are  to  be  approved  by  the  court. 
When  such  sureties  are  insolvent  or  the  penal  sum  named  in 
the  bond  is  insufficient,  or  from  any  other  cause  the  bond 
becomes  unsatisfactory,  a  new  bond  may  be  ordered  with 
such  security  as  the  court  deems  proper.  This  bond  is  made 
payable  to  the  judge  or  his  successors  in  office,  and  is  kept  on 
file,  to  be  sued  in  behalf  of  the  ward  or  by  any  other  person 
who  may  be  injured  by  the  misconduct  of  the  guardian  while 
in  office.^ 

A  probate  bond  may  be  good,  though  inartifically  drawn, 
if  substantially  in  compliance  with  the  statute.^  And  if  it 
contains  more  than  the  law  requires,  it  is  nevertheless  good 
for  such  portion  as  is  lawful.^  But,  perhaps  not,  if  it  con- 
tains less.  A  bond  is  not  to  be  avoided  for  slight  defects 
committed  through  carelessness  or  error.  In  some  instances, 
defective  bonds  have  been  cured  in  equity,  so  as  to  hold  both 
principal  and  sureties,  and  have  been  made  enforceable  even 
though  void  at  law.*  A  bond  is  not  vitiated  which  contains 
a  proper  recital  of  the  ward's  name,  although  there  be  a  dis- 

1  See  Mass.  Gen.  Sts.  c.  101;  ib.  c.  eral,  sureties  as  well  as  the  guardian, 

109 ;  Bennett  v.  Byrne,  2  Barb.  Ch.  216.  are  estopped  by  the  delivered  bond  it- 

A  succeeding  guardian   may  of  course  self  from  denying  its  legal  effect  on  the 

sue  sucli  bond.     Voris  v.  State,  47  Ind.  ground  of  fraud  by  the  guardian,   or 

345.     Tiie  probate  guardian    ought  to  arrangements  witli  him  as  to  otlier  sig- 

file  an  approved  bond  before  being  con-  natures,  &c.,  to  wliich    the  court,  the 

sidered  duly  qualified.    The  court  can-  ward,  and  parties  to  be  protected  by 

not,  after  appointing  him  guardian  of  the  bond  were  not  privy.     Vincent  v. 

one   ciiild,  appoint    him    guardian   of  Starks,  45  Wis.  4-58 ;  Sasscer  v.  Walker, 

another  subsequently,  and  then   order  5  Gill  &  J.  102  ;  State  v.  Hewitt,  72  Mo. 

the  former    bond   to   stand   for   both.  603;  Brown  r.  Probate  Judge,  42  Mich. 

Vanderburg  v.   Williamson,   52    Miss.  501.     Even   if  the  guardian's  appoint- 

233.     Some  statutes  hold  the  judge  to  ment  was  void  for  want  of  jurisdiction, 

careful  inquiry  into  the  sufficiency  of  tlie  sureties   are  held  liable   with  him 

sureties  before  accepting  tlicm.  Colter  for  his  quasi  guardianship  under  which 

!'.  Mclntire,  11  Bush, -565.     Delivery  of  he  obtained   the  property.     Corbitt  v. 

a  guardian's  bond  to  the  proper  office  Carroll,  50  Ala.  315. 

cannot   readily  be    shown,    after   long  2  Probate  Court  v.   Strong,  27  Vt. 

lapse  of  time,  to  be  merely  in  escrow.  202  ;  Alston  i'.  Alston,  34  Ala.  15 ;  Ordi- 

Ordinary  v.  Thatclier,  41  N.  J.  L.  403.  nary  v.  Heishon,  42  N.  J.  L.  15. 

A  bond   filed   and    executed   by    two  ^  Pratt  v.  Wriglit,  13  Gratt.  175. 

sureties,  though  calling  in  its  premises  *  Wiser  y.  Blaclily,  IJohns.  Ch.  G07; 

for  three,  may  bind  the  two.     Ordinary  Sikes  u.  Truitt,  4  Jones  Eq.  361 ;  Bum- 

V.  Thatcher,  41  N.  J.   L.  403.     In  gen-  pus  v.  Dotson,  7  Ilumpli.  310. 

514       ' 


CHAP.  VIII.]  guardian's   BOND,    ETC.  §  367 

crepancy  in  names  between  the  bond  and  letter  of  guardian- 
ship ;  and  yet  sureties  have  been  relieved  from  liability  on  the 
ground  that  the  ward  was  not  named  in  the  bond  at  all.* 
The  true  principle  which  distinguishes  such  cases  seems  to 
be  that  the  identity  of  the  parties  should  sufficiently  appear. 

Where  there  are  several  wards,  one  probate  bond  is  sufficient 
for  all.2  But  separate  bonds  for  each  ward  would  not  be  im- 
proper, and,  in  some  instances,  might  be  even  preferable. 
The  names  of  all  the  wards  should  be  embraced  in  the  bond, 
where  only  one  is  furnished. 

Natural  guardians  are  not  required  to  give  bond.  Nor 
were  guardians  in  socage.  Nor,  in  England,  are  testamentary 
guardians  to  furnish  security  to  the  court.  The  reason  is  that 
these  guardians  were  not  judicially  appointed  nor  answerable 
in  general  to  the  court.  The  same  law  prevails  in  many  parts 
of  this  country.^  But  in  some  States  testamentary  guardians 
are  treated  like  executors,  in  respect  to  their  appointment ; 
that  is  to  say,  the  will  which  names  them  must  be  admitted 
to  probate  and  letters  issued  ;  and  the  testator's  appointment 
is  made  subject  to  judicial  approval.  In  such  cases,  the  testa- 
mentary guardian,  like  the  executor,  is  required  to  give  se- 
curity ;  but  he  may  be  exempted  from  giving  sureties,  if  the 
testator  requested  such  exemption  and  the  court  deems  it 
safe  to  grant  the  request.* 

§  367.  The  Same  Subject;  Liability  of  Guardian  and  Sure- 
ties. —  The  bond  of  a  probate  guardian  renders  him  and  his 
sureties  liable  for  all  estate  of  the  ward  which  shall  come  to 
his  possession  or  knowledge.  This  includes  chattels  due  from 
the  guardian  to  the  ward  at  the  time  of  his  appointment  or  of 
the  execution  of  the  bond,  even  though  the  fund  be  the  pro- 
ceeds of  land  already  sold  and  paid  for,  and  the  rent  of  real 
estate  occupied  by  the  guardian  before  that  time.  It  embraces 
chattels  and  rents  and  income  from  every  species  of  property 


1  Shuster  v.  Perkins,  1  Jones,  325;         2  Cranston  v.  Sprague,  3  R.  I.  205; 

Greenly  v.  Daniels,  6  Bush,  41  ;   State  Ordinary  v.  Heishon,  42  N.  J.  L.  15. 
V.   Martin,  69  N.   C.    175;    Shroyer  r.         3  gees^jorfl,  cs.  1,  2;  Thomas  y.  Wil- 

Richmond,  16  Ohio  St.  455;  Richard-  Hams,  9  Fla.  289. 
son  V.  Boynton,  12  Allen,  138.  *  See  Mass.  Gen.  Sts.  c.  109. 

515 


§  367  THE  DOMESTIC   RELATIONS.  [PART  IV. 

that  the  guardian  actually  receives  in  his  official  capacity,  or 
that  he  might  have  received  if  he  had  faithfully  performed 
his  duties.^  Property  received  from  persons  resident  in 
another  State  is  covered  by  the  bond  as  much  as  property 
originally  within  the  jurisdiction.^  But  while  the  property 
is  beyond  his  reach,  and  cannot  be  obtained  without  a  foreign 
appointment,  the  liability  of  his  bondsmen  would  not  seem  to 
extend  beyond  a  general  dereliction  of  duty  on  his  part  in 
neglecting  the  proper  means  of  obtaining  it.  The  bond  of 
guardians  of  foreign  wards,  appointed  for  recovering  estate 
situated  in  their  own  State,  binds  them  to  account  only  for 
such  property,  nor  can  they  be  held  liable  for  the  custody  of 
the  wards  while  the  latter  remain  non-residents.  A  legacy 
due  from  the  executor  of  the  ward's  father,  and  other  estate 
lawfully  payable  to  the  guardian  by  the  executor,  must  all  be 
accounted  for,  and  for  this  the  guardian's  sureties  are  doubt- 
less liable.  But  for  property  unlawfully  received  by  the 
guardian,  although  he  may  be  compelled  to  account  for  it  on 
his  personal  responsibility,  his  sureties  are  not  liable,  since  it 
does  not  come  to  his  hands  as  guardian.^  Where  the  guar- 
dian loans  his  ward's  money  improvidently,  he  and  his  sureties 
become  and  continue  liable  for  it.* 

The  liability  of  sureties  lasts  while  the  responsibilities  of 
the  guardianship  continue,  and  it  does  not  terminate  by  the 
resignation  or  death  of  the  guardian.  For  the  ward's  estate 
in  the  guardian's  hands  or  subject  to  his  control  at  the  time 
of  his  death,  they  continue  liable.'^  Not  even  the  statutory 
limitation  to  suits  against  executors  and  administrators  oper- 
ates to  relieve  such  sureties  for  the  default  of  their  deceased 
principal.^     The  estate  of  a  deceased  surety  is  liable  for  a  de- 

1  Mattoon  v.  Cowing,  13  Gray,  887 ;  As  to  liability  where  court  ordered  a 
Neill  V.  Neill,  31  Miss.  36 ;  Bond  v.  Lock-  deposit  of  money,  see  Griffith  v.  Parks, 
wood,  33  111.  212  ;  Williams  v.  Morton,     32  Md.  1. 

38   Me.  47  ;  McClendon  v.   Harlan,   2         *  Richardson  v.  Boynton,  12  Allen, 

Heisk.  337  ;  Hunt  v.  State,  53  Ind.  321.  138. 

2  McDonald  v.  Meadows,  1  Met.  5  Moore  r.  "Wallis,  18  Ala.  458 ;  State 
(Ky.)  507.  V.  Thorn,  28  Ind.  306  ;  Aghby  v.  John- 

3  Livermore  v.  Bemis,  2  Allen,  394 ;  ston,  23  Ark.  163. 

Allen  V.  Crosland,  2  Rich.  Eq.  68 ;  Bal-  ^  Chapin  v.  Livermore,  13  Gray, 
lard  V.  Brummitt,  4  Strobh.  Eq.  171.     561 ;  Ordinary  v.  Smith,  55  Ga.  15. 

616 


CHAP.  VIII.]  guardian's  BOND,   ETC.  §  367 

fault  of  the  guardian  which  occurred  after  such  surety's 
death,  and  before  final  settlement  of  the  trust.^  Sureties  are 
liable  so  long  as  the  official  bond  can  be  sued  at  all.  But  a 
surety  may  be  discharged  at  any  time  upon  his  petition  and 
after  due  notice  to  all  parties  interested ;  and  thereupon  the 
court  will  order  the  guardian  to  furnish  new  security,  and, 
upon  his  failure  to  do  so,  may  remove  him.  But  such  surety 
remains  liable  until  the  new  bond  is  approved. ^  The  personal 
representative  of  a  deceased  surety,  it  would  appear,  may 
compel  the  guardian  to  furnish  new  security  in  like  manner.^ 
The  approval  of  a  new  bond  and  the  discharge  of  a  former 
surety  terminate  ipso  facto  the  liability  of  such  surety  so  far 
as  new  acts  of  the  guardian  are  concerned,  notwithstanding 
the  security  substituted  may  prove  insufficient,  or  the  instru- 
ment fatally  defective."*  Nor  is  release  of  a  surety  to  be  readily 
presumed.^  One  surety  cannot  be  discharged  from  his  liabil- 
ity without  the  other,  unless  the  latter  by  words  or  acts  shows 
his  consent  to  remain  solely  responsible.^ 

The  sureties  on  a  guardian's  bond,  though  liable,  it  may  be, 
for  money  received  by  the  guardian  before  the  bond  was  made, 
are  not  liable  for  what  he  receives  after  having  resigned  or 
been  removed  from  office.^  And  where  a  ward  dies  and  the 
guardian  administers  upon  his  estate,  the  liability  for  the 
assets  formerly  held  by  the  latter  as  guardian  becomes  trans- 
ferred to  him  as  administrator,  and  the  sureties  on  his  adminis- 
tration bond  are  made  liable  in  place  of  those  who  were  his 
bondsmen  in  the  guardianship.^  But  redress  for  a  guardian's 
conversion  should  be  sought  on  the  bond  or  bonds  in  force 
at  the  time ;  and  the  question  is  not  when  does  the  guardian 

1  Voris  V.  State,  47  Ind.  345  ;  Cotton  6  See  Newcomer's  Appeal,  43  Penn. 
V.  State,  64  Ind.  573.  See  Brooks  v.  St.  43 ;  Sebastian  v.  Bryan,  21  Ark. 
Rayner,  127  Mass.  268.  447 ;  Frederick  v.  Moore,  13  B.  Monr. 

2  Jamison  v.  Cosby,  11  Humph.  273;  470  ;  Boyd  v.  Gault,  3  Bush,  644. 
Mass.  Gen.  Sts.  c.  101 ;  Bellune  v.  Wal-  ^   Merrells  v.  Phelps,  34  Conn.  109. 
lace,  2  Rich.  80.  But  as  to  payments  made  to  some  per- 

8  Moore  v.  Wallis,  18  Ala.  458.  son  by  one  not  aware  that  his  authority 
*  Hamner  v.  Mason,  24  Ala.  480.     has   been  revoked,  see  Sage  v.  Ham- 
See   Kendrick   v.  Wilkinson,   18  Ind.    monds,  27  Gratt.  651.     See  Downing  v. 
206.  Peabody,  56  Ga.  40. 

6  Wann  v.  People,  57  111.  202.  8  Baker  v.  Wood,  42  Ala.  664. 

517 


§  368  THE  DOMESTIC   RELATIONS.  [PAKT   IV. 

charge  himself  with  assets,  but  when  do  they  come  to  his  pos- 
session or  knowledge  as  guardian.^ 

Where  the  guardian  has  filed  an  additional  bond,  as  in  case 
of  a  large  accession  to  the  original  estate,  both  bonds  remain 
valid  and  the  sureties  (as  such  statutes  are  generally  con- 
strued), are  all  deemed  co-sureties,  and  liable  as  such.^  And 
a  bond  voluntarily  offered  by  the  guardian  and  approved  in 
the  ordinary  form  is  as  binding  as  though  it  had  been  ordered 
by  the  court.^  Where  the  sureties  of  an  old  bond  are  dis- 
charged and  a  new  bond  is  substituted,  the  usual  rule  is  that 
the  old  sureties  and  the  new  are  liable  together  as  co-sureties 
for  the  defaults  of  the  guardian,  previous  to  filing  the  new 
bond,  and  that  the  new  sureties  alone  bear  the  responsibility 
of  his  subsequent  misconduct.*  But  the  liability  of  a  surety 
on  a  new  bond  given  in  place  of  the  original  one  is  in  some 
States  treated  as  prospective  only,  on  the  equitable  principle 
that,  where  the  statute  bond  does  not  plainly  express  a  retro- 
spective operation,  such  should  not  be  its  construction.^ 
Contribution  is  in  proportion  to  the  penal  sum  named  in  the 
respective  bonds. 

§  368.  Same  Subject.  —  Many  of  the  decisions  in  regard  to 
administration  bonds  apply  on  principle  to  those  of  guardians. 
Thus,  a  bond  which  is  not  signed  by  the  guardian  is  not  bind- 
ing even   upon   his  sureties.^     And   if  altered,  after  being 

1  Lowry  u.  State,  64  Ind.  421 ;  John-  is  required  in  some  States,  and  even 

son  V.  McCulIough,  59  Ga.  212.  such  bonds  are  lield  to  be  cumulative, 

•^  Loring   v.    Bacon,  3   Gush.   465;  under  the   statute,  as   to   the  wards. 

Commonwealth  v.  Cox,  -36  Penn.   St.  though  contribution  is  in  inverse   or- 

442  ;  Allen  v.  State,  61  Ind.  268.  der  of  e.xecution.    Tennessee  Hospital 

3  Potter  V.  State,  2-3  Ind.  550.  v.   Fuqua,    1   Lea,   608.     A   surety   is 

4  Loring  v.  Bacon,  3  Gush.  465 ;  Bell  not  liable  for  money  paid  tlie  guardian 
V.  Jasper,  2  Ired.  Eq.  597  ;  Hutchcraft  on  account  of  a  ward  who  at  the  time  of 
V.  Shrout,  1  Monr.  206;  Jones  v.  Blan-  payment  was  of  age.  Slieton  u.  Smith, 
ton,  6  Ired.  Eq.  115 ;  Ammons  v.  Peo-  59  Tenn.  82.  A  surety's  contingent 
pie,  11  111.  6;  Sayers  v.  Gassell,  23  liability,  being  provable  against  him 
Gratt.  525;  McGloshlin  v.  Wyatt,  1  Lea,  in  bankruptcy  proceedings,  niay  thus 
717 ;  State  y.  Page,  63  Ind.  209.  The  have  been  avoided.  Davis  i-.  McGurdy, 
language  of  a  local  code  must  be  re-  50  Wis.  569.  But  not  a  guardian's, 
sorted  to  for  the  rule  in  such  cases  as  to  Re  Maybin,  15  Bankr.  Reg.  468. 

the  discharge  of  former  bondsmen  from  ^  Lowry  v.  State,  64  Ind.  421 ;  State 

liability.     See   Sayers    v.    Gassell,    23    v.  Shackleford,  56  Miss.  648. 

Gratt.  52-5.    A  periodical  statutory  bond         ^  Wood  v.  Washburn,  2  Pick.  24. 

518 


CHAP.  VIII.]  guardian's   BOND,    ETC.  §  369 

signed  by  two  sureties,  with  the  consent  of  the  principal  only, 
and  then  signed  by  two  other  sureties,  ignorant  of  the  altera- 
tion, it  is  not  binding  upon  any  of  the  sureties  ;  not  upon  the 
two  first,  because  altered  without  their  consent ;  not  upon  the 
other  two,  because  they  were  not  informed  of  the  release  of 
the  two  former.i  So  joint  guardians  who  wish  to  limit  their 
respective  liabilities  must  furnish  separate  bonds ;  since  both 
are  responsible  for  all  the  acts  of  each  other  during  the  con- 
tinuance of  the  joint  guardianship  where  they  execute  a  joint 
bond.2  And  the  usual  rule  is  that  no  more  than  the  penal 
sum  named  in  the  bond  can  be  recovered  upon  it,  unless  it  be 
by  way  of  interest  or  costs.^ 

§  369.  The  Same  Subject ;  Special  Bond  in  Sales  of  Real 
Estate.  —  A  special  bond  is  in  many  States  required  where 
a  guardian  is  licensed  to  make  sale  of  his  ward's  real  estate. 
Where  real  estate  has  been  sold  by  a  guardian,  and  the  pro- 
ceeds remain  unaccounted  for  at  the  expiration  of  his  trust,  it 
is  a  question  whether  the  sureties  on  his  general  bond  shall 
be  held  responsible,  or  those  on  the  special  bond  given  for  sale 
of  the  real  estate.  The  best  authority  is  in  favor  of  charging 
the  latter  and  not  the  former  sureties  for  the  guardian's  mis- 
application of  such  moneys.*  The  rule  in  Massachusetts, 
where  a  guardian,  who  has  been  licensed  to  sell  real  estate 
for  the  purpose  of  investment,  fails  to  invest,  and  charges 
himself  instead,  in  his  accounts,  with  the  proceeds  and  inter- 
est from  year  to  year,  has  been  to  hold  him  responsible  for 
the  proceeds  of  the  sale  upon  his  special  bond,  but  for  the 

1  Howe  V.  Peabody,  2  Gray,  556.  Monr.  292.     See  Andrews'  Heirs  Case, 

2  Brazier  v.  Clark,  5  Pick.  90 ;  Spar-  3  Humph.  592.  In  some  States  the 
hawk  V.  Buell's  Adm'r,  9  Vt.  41 ;  Boyd  requirement  of  an  additional  or  special 
V.  Boyd,  1  Watts,  365.  But  see  Wil-  bond  in  sueli  case  is  matter  of  judicial 
Hams  r.  Harrison,  19  Ala.  277.  discretion.     See    Vanderburg  v.    Wil- 

'^  Tyson  v.  Sanderson,  45  Ala.  364 ;  liamson,  52  Miss.  233.     The  court  by 

Schouler  Pers.  Prop.  405-470.  altering   the   terms  of  sale,  &c.,    does 

*  Williams  v.  Morton,  38   Me.  47;  not  impair  the  obligation  of  such  bond. 

Brooks  V.  Brooks,  11  Cush.  22 ;  Potter  Stevenson  v.  State,  09  Ind.  257  ;  Stev- 

V.  State,  23  Ind.  607 ;  Fay  v.  Taylor,  enson  v.  State,  71  Ind.  52.     See  also 

llMet.  529;  Blausery.  Diehl,  90Penn.  Colburn    v.   State,  47  Ind.   310,  as  to 

St.  350 ;  Madison  County  v.  Johnston,  real  estate   sale  on  application  of  an- 

51.  Iowa,  152;  Henderson  v.  Coover,  4  other  than  the  guardian. 
Ntv.   429 ;   Withers  v.  Hickman,  0  B. 

519 


§  370  THE  DOMESTIC   RELATIONS.  [PART  IV. 

interest  upon  his  general  bond.^  The  omission  to  give  a 
special  bond  for  the  sale  of  real  estate  is,  on  the  foregoing 
principles,  no  breach  of  the  guardian's  general  bond. 

§  370.  The  Guardian's  Inventory.  —  One  of  the  probate 
guardian's  first  duties  after  his  appointment  is  to  file  an  in- 
ventory of  the  ward's  effects.  This  is  a  schedule,  prepared 
by  discreet  and  disinterested  persons,  and  verified  by  their 
oath,  wherein  the  amount  of  the  ward's  estate,  both  real  and 
personal,  together  with  the  separate  items,  are  duly  entered 
at  a  just  valuation.  The  inventor}^  serves  as  the  basis  of  the 
guardian's  accounts  and  primarily  fixes  his  liability.  Here 
again  the  statute  relative  to  infants  borrows  from  the  long 
established  practice  of  the  English  ecclesiastical  courts,  with 
regard  to  executors  and  administrators.  But  one  inventory 
is  in  general  necessary ;  and,  if  subsequent  effects  come  to 
the  guardian's  hands,  ho  will  place  them  in  his  accounts  to 
the  ward's  credit.  It  is  to  be  observed  that  though  probate 
inventories  are  prvna  facie  evidence  of  the  existence  of 
assets  and  their  true  valuation,  they  are  by  no  means  conclu- 
sive. And  the  guardian  may  show,  in  rendering  his  accounts, 
that  he  was  not  chargeable  with  certain  items  which  therein 
appeared,  or  that  the  sale  of  property  realized  less  than  its 
appraised  worth ;  and  he  will  be  credited  accordingly.  On 
the  other  hand,  property  omitted  from  the  inventory,  which 
comes  within  the  guardian's  reach  in  any  manner,  should  be 
accounted  for,  as  well  as  all  gains  realized  over  and  above 
the  appraisers'  valuation.  During  the  long  period  for  which 
a  guardian's  authority  frequently  lasts,  the  inventory  may 
become  of  little  practical  consequence,  except  as  furnishing 
for  himself  the  starting-point  in  his  system  of  accounts,  and 
determining,  for  the  convenience  of  others  interested,  the 
fact  and  extent  of  his  original  liability.  And  as  the  ward's 
real  estate  is  to  be  preserved  intact  unless  a  sale  is  ordered, 
the  guardian's  account,  like  that  of  an  administrator,  usually 
in  this  country  starts  with  the  amount  of  personal  estate 
according  to  the  inventory,  taking  into  his  reckoning  only  the 

1  Mattoon  v.  Cowing,  13  Gray,  387.     See  Pratt  v.  McJunkin,  4  Rich.  5. 

520 


CHAP.  VIII.]         guardian's   ACCOUNTS,   ETC.  §  372 

income  and  expenditures  from  the  real  estate  until  some  sale 
of  land  is  actually  made.  If  two  or  more  persons  under 
guardianship  are  interested  in  different  property,  or  have 
unequal  interests  in  the  same  property,  separate  schedules 
should  be  rendered  for  each.^ 

§371.  The  Guardian's  Accounts;  English  Chancery  Practice. 
—  The  accounts  of  guardians  are  in  England  subject  to  the 
direction  of  the  Court  of  Chancery.  Guardians  and  receivers 
who  have  entered  into  recognizance  as  officers  of  the  court 
are  compelled  to  present  their  accounts  on  application  made 
by  any  person  interested.  Such  proceedings  are  by  petition, 
or  on  motion  filed.  Receivers  are  expected  to  pass  their 
accounts  regularly,  and  a  guardian  is  compelled  to  account 
by  enforcing  his  recognizance.  The  common  rules  as  to 
executors  and  trustees  apply  to  guardians.  But  unless  there 
is  misconduct  shown,  the  guardian  need  not  show  specifically 
how  he  has  used  the  sum  allowed  as  maintenance.  A  re- 
ceiver's accounts  are  sometimes  examined  on  application  of 
strangers.  Mr.  Macpherson  says  that  there  is  scarcely  a 
modern  instance  to  be  found  where  an  account  has  been 
taken  from  a  guardian  without  suit.^  In  like  manner,  equity 
treats  as  guardians  all  persons  who  take  possession  of  an 
infant's  estate,  whether  duly  authorized  to  act  or  not,  and 
obliges  such  persons  to  account,  on  application  made  by  the 
infant  himself,  or  on  his  behalf.^ 

§  372.  Guardian's  Accounts ;  American  Practice ;  Periodical 
and  Final  Accounts,  &c.  —  Courts  of  equity  in  this  country  are 
doubtless  authorized  to  entertain  like  proceedings  against  all 
quasi  guardians.^  But  under  our  statutes  probate  guardians, 
duly  appointed,  are  invariably  made  liable  to  account,  in  the 

1  Matter  of  Seaman,  2  Paige,  409  ;  not  precluded  by  the  inventory  from 

Hooker  v.  Bancroft,  4  Pick.  50  ;   Mass.  showing  the  true  ownership  of  alleged 

Gen.  Sts.  c.  100,  109  ;  State  v.  Stewart,  assets.     Sanders  v.  Forgasson,  3  Baxt. 

36  Miss.   652 ;  Clark  v.  Whitaker,  18  249. 

Conn.   543 ;  Fuller   v.   Wing,  5  Shep.         2  Macphers.  Inf.  108 ;  ib.  259,  348. 
222;  Green  i;.  Johnson,  3  Gill  &  Johns.  3  Macphers.    Inf.    259;    Story   Eq. 

388 ;  Fogler  y.  Buck,  66  Me.  205.     And  Juris.   §   1195;   Morgan  v.  Morgan,  1 

see,    as    to    inventories    generally,    1  Atk.  489. 

Wms.  Ex'rs,  878-883;  2  Redf.   Wilis.         *  Chaney  v.  Smallwood,  1  Gill,  367; 

200-205.    A    guardian's    sureties  are  next  c. 

521 


§  372  THE  DOMESTIC   RELATIONS.  [PAUT   IV. 

first  instance,  to  the  local  court  issuing  letters  of  guardian- 
ship, which  thus  becomes,  in  fact,  the  general  depository  of 
accounts  relative  to  the  estates  of  deceased  persons  and 
wards.  The  immediate  jurisdiction  over  the  settlement  of 
guardians'  accounts  is  usually,  therefore,  in  the  probate 
court. 

An  important  distinction  is  observable  in  the  American 
practice  concerning  the  accounts  of  probate  guardians,  be- 
tween the  final  account  and  those  rendered  from  time  to 
time  pending  the  minority  of  the  ward.  The  rule  is  that 
these  intermediate  accounts,  although  judiciall}^  approved 
and  parsed,  are  by  no  means  conclusive.  They  serve  to 
show  the  guardian's  liabilitv  and  to  keep  the  court  informed 
of  the  general  condition  of  the  trust  funds,  to  determine 
when  the  guardian's  bond  should  be  increased,  and  to  ascer- 
tain as  to  the  propriety  of  sales  and  investments.  Such 
accounts  remain  2^'i'i'>^i(i  fad^  evidence  of  the  sum  of  the  guar- 
dian's indebtedness  to  his  ward,  but  nothing  more.^  The 
privilege  remains  to  the  ward,  as  we  shall  notice  in  the  next 
chapter,  of  disputing  their  accuracy  when  he  comes  of  age. 
But  on  the  final  account  of  the  guardian,  which  is  to  be  ren- 
dered at  the  expiration  of  his  trust,  the  question  comes  before 
the  court  as  to  the  general  fairness  of  his  management,  and 
items  allowed  in  former  accounts  may  then  be  stricken  out  as 
improper.  The  reason  of  this  is  that  the  cestui  que  trust  had 
no  earlier  opportunity  of  judging  as  to  the  correctness  of  the 
trustee's  accounts,  and  ascertaining  that  final  balance,  which 
is,  after  all,  the  estate  in  controversy.  So,  too,  a  guardian  in 
his  final  account  should  be  allowed  to  correct  errors  to  his 
prejudice,  satisfactorily  proved  to  exist  in  his  prior  accounts, 
both  as  to  matters  of  form  and  substance.^  But  the  final 
account,  once  examined  and  approved  by  the  court,  and  not 
reversed  on  appeal,  the  ward's  period  of  objecting  to  the 
same   having   also   expired  by  limitation,  such  account,  to- 

1  Douglas's   Appeal,   82    Penn.   St.         -  Crump  v.  Gerock,  40  Miss.  765 ; 

169  ;  Bourne  v.  Maybin,  3  Woods,  C.  C.  Burnham   v.   Dallins,    1  C.  E.  Green, 

724  ;   Ashley  v.  Martin,  50  Ala.   537  ;  144  ;  Willis  v.  Fox,  25  Wis.  616 ;  Blake 

Matlock  V.  Rice,  6  Heisk.  33.  v.  Pegraui,  101  Mass.  592. 

622 


CHAP.  VIII.]         guardian's   ACCOUNTS,   ETC.  §  372 

gether  with  all  which  preceded,  it,  concludes  all  parties  inter- 
ested, and  cannot  be  reopened  or  annulled  in  any  court ; 
certainly  not  unless  by  direct  proceedings  to  obtain  a  rever- 
sal or  setting  aside  for  fraud  or  manifest  error:  perhaps  in 
most  States  not  at  all.^ 

With  probate  guardians  it  is  the  usual  practice  to  present 
accounts  with  vouchers  annually,  and  in  some  States  once  in 
three  years,  or  as  otherwise  directed  by  the  court,  the  parties 
in  interest  other  than  the  ward  having  been  first  cited,  unless 
their  approval  appears  upon  the  face  of  the  account.  The 
account  is  considered  by  the  court  and  passed  after  due  exam- 
ination, upon  the  oath  of  the  guardian.  The  vouchers  are 
retained  by  the  guardian,  but  the  account  is  recorded  and 
filed  in  the  court.^  The  accounts  of  wards  having  different 
interests  in  property  should  be  rendered  separately.^  But 
the  fact  that  a  guardian  of  two  wards  invested  on  their  joint 
account  without  distinguishing  their  several  interests  is  no 
reason  why  the  investment  should  be  disallowed,  if  suffi- 
ciently for  each  ward's  benefit.^  In  some  States  the  guar- 
dian's final  account  must  embrace  all  items  contained  in  his 
prior  accounts,  and  not  begin  with  the  balance  on  the  last 


1  Boynton  v.  Dyer,  18  Pick.  1 ;  not  ignore  a  final  settlement  of  the 
Diaper  v.  Anderson,  37  Barb.  1G8;  guardian's  accounts,  duly  made  and  re- 
Manning  V.  Baker,  8  Md.  44  ;  Allman  corded,  and  cause  another  decree  to  be 
V.  Owen,  31  Ala.  167 ;  Reynolds  v.  entered  in  the  same  court.  Foust 
Walker,  29  Miss.  250  ;  State  v.  Strange,  v.  Chamblee,  51  Ala.  75.  When  the 
1  Cart.  538;  Stevenson's  Appeal,  32  guardian's  settlement  is  surcharged  in 
Penn.  St.  318 ;  Cummings  v.  Cum-  equity,  the  particular  items  objection- 
mings,  128  Mass.  532 ;  Holland  v.  State,  able  should  be  specified.  Tanner  v. 
48  Ind.  391 ;  Brent  v.  Grace,  30  Mo.  Skinner,  11  Bush,  120. 
253;  Seaman  v.  Duryea,  1  Kern.  324;  '•'  As  to  the  effect  of  annual  settle- 
Yeager's  Appeal,  34  Penn.  St.  173 ;  ments  where  the  pul)lic  records  have 
Lynch  i'.  Rotan,  39  111.  14  ;  Smith  v.  been  destroyed,  see  Kidd  v.  Guibar,  63 
Davis,  49  Md.  470.  Similar  rules  Mo.  342.  The  contents  may  be  proved 
apply  often,  as  in  settlements  by  execu-  by  parol.  lb.  The  guardian's  final 
tors  and  administrators.  Irregular  al-  account  should  purport  on  its  face  to 
lowance  of  a  guardian's  account  upon  be  such.  Bennett  v.  Hanifin,  87  111. 
an  alteration,  and  the  discliarge  there-  31.  While  in  force  it  is  an  adjudica- 
upon  of  the  guardian,  all  without  notice  tion  of  the  matters  lawfully  embraced 
to  the  ward,  cannot  be  permitted  to  therein.  Briscoe  y.  Johnson,  73  Ind.  573. 
deprive  the  latter  of  his  rights.  Bu-  3  Armstrong  v.  Walkup,  9  Gratt. 
chanan  v.  Grimes,  52  Miss.  82.  The  372  ;  State  v.  Foy,  65  N.  C.  265. 
administrator  of  a  deceased  ward  can-  ■*  Nance  v.  Nance,  1  S.  C.  n.  s.  209. 

623 


§  372  THE  DOMESTIC  RELATIONS.  [PART  IV. 

one  5  but  the  practice  in  this  respect  is  not  uniform  in  the 
United  States.^  Guardians  sometimes  make  settlements  out 
of  court,  rendering  no  returns  ;  but  this  practice  is  not  common 
where  the  infant's  estate  is  large ;  nor  is  it  safe,  since  the 
failure  to  account  is  a  breach  of  the  guardianship  bond,  and 
renders  the  sureties  and  the  guardian  himself  liable.  Any 
party  in  interest  may  compel  the  guardian  to  present  his  ac- 
counts years  after  the  guardianship  is  at  an  end,  notwith- 
standing he  has  a  receipt  in  full  from  the  ward  ;  for  no  mere 
lapse  of  time  can  be  set  up  against  a  trust,  except  that  the 
usual  limitation  to  suits  on  specialties  might  determine  the 
remedies  of  parties  aggrieved  as  against  the  guardian  and  his 
sureties.^  But  lapse  of  time,  taken  in  connection  with  other 
circumstances  showing  a  due  execution  of  the  trust,  will  be 
favorably  regarded  ,  and  the  guardian's  account  need  not 
then  be  so  strictly  made  up  and  proved  as  would  be  otherwise 
necessary.^  Where  no  effects  have  come  to  the  guardian's 
possession  or  knowledge,  he  need  not  file  either  inventory  or 
account;  but  so  soon  as  there  is  property  his  liability  becomes 
fixed  ;  and  he  cannot  be  exempted  from  account  on  the  ground 
that  the  ward's  estate  does  not  more  than  balance  his  own  out- 
lays and  expenses.  The  final  account  is  not  allowed  by  the 
court,  until  the  ward  has  had  the  opportunity  of  examining  it.* 
But  on  the  termination  of  a  guardian's  trust,  pending  the 
infancy  of  the  ward,  a  final  account  is  sometimes  allowed 
after  due  notice  to  parties  interested,  and  examination  by  a 
suitable  guardian  ad  litem  on  the  ward's  behalf;  and  thus, 
too,  may  it  be  with  an  intermediate  account ;  not,  however, 
as  it  would  usually  appear,  so  as  to  absolutely  debar  the  ward 
from  disputing  the  account  afterwards  on  reaching  majority.^ 

1  Foltz's  Appeal,  55  Penn.  St.  428.  Pierce  v.  Irish,  31  Me.  254;  Smith  v. 

The  last  of  the  periodical  accounts  may  Davis,  49  Md.  470. 
suffice.     Woodmansie  v.  Woodmansie,         *  Woodbury  v.  Hammond,  54  Me. 

32  Ohio  St.  18.  332 ;  Whitney  v.  Whitney,  7  S.  &  M. 

-  Clarke  v.  Clay,  11  Post.  .393  ;  Bard  740. 
V.  Wood,  3  Met.  74  ;  Crane  v.  Barnes,         ^  See  Smith  Prob.  Pract.  182  ;  Ea- 

1  Md.  Ch.  151 ;  Wade  v.  Lobdell,  4  Cush.  couillat  v.  Requena,  30  Cal.  651 ;  Blake 

510 ;  Gilbert  v  Guptill,  34  111.  112.    See  v.  Pegram,  101  Mass.  592  ;  Jones  v.  Fel- 

next  c.  lows,  58  Ala.  343  ;  Huttou  v.  Williams, 

3  Gregg  V.   Gregg,  15  N.   H.  190,  60  Ala.  133. 

524 


CHAP.  VIII.]  GUAKDIAN'S   ACCOUNTS,   ETC.  §  373 

It  is  the  duty  of  every  guardian,  whose  trust  as  such  is  re- 
voked, to  account  honestly  to  the  late  wards,  or  to  his  succes- 
sor in  the  trust  if  there  be  one,  for  their  estate.  Thus,  a 
guardian  cannot  discharge  himself  by  simply  turning  over  to 
his  successor  the  latter's  note  for  an  individual  debt  due 
the  guardian  and  taking  a  receipt  in  full  ;  but  he  will  still 
be  bound  in  equity  to  the  ward  unless  he  transfers  the  ward's 
property,  or  money  in  lieu,  or  good  securities,  such  as  are  ad- 
mitted to  be  proper  investments.^  Permitting  a  guardian  to 
resign  or  removing  him  is,  of  course,  no  judgment  that  a  full 
settlement  and  accounting  has  been  had.^  And  the  collusive 
appointment  of  a  successor,  together  with  a  collusive  settlement, 
cannot  conclude  the  rights  of  the  defrauded  party  in  interest.^ 
§  373.  The  Same  Subject.  —  Where  the  same  person  is  both 
the  executor  of  the  parent's  estate  and  guardian  of  the  in- 
fant heir,  he  should  first  settle  his  executor's  account,  and 
then  transfer  the  balance  by  way  of  distributive  share  to 
the  account  of  guardianship.^  Accounts  of  joint  guardians 
may  generally  be  rendered  on  the  oath  of  one  of  them.^ 
Where  a  guardian  dies,  resigns,  or  is  removed,  his  final  ac- 
count must  be  presented,  and  it  is  the  successor's  duty  to  see 
that  the  former  guardian  is  held  to  a  strict  compliance  with 
his  bond  ;  since  otherwise  he  may  make  himself  liable  to  the 
ward.^  The  final  account  of  a  deceased  guardian  is  properly 
presented  by  his  personal  representatives,  who  may  be  cited 
into  court  for  that  purpose  ;  but  for  a  deficit  beyond  the  ac- 
tual assets  in  their  hands,  the  sureties  must  answer.'      Hence 

1  Sage  r.  Hammonds,  27  Gratt.  651  ;  O'Hara  v.  Shepherd,  3  Md.  Ch.  306- 
Manning  v.  Manning,  01  Ga.  137  ;  Coles  Crenshaw  v.  Crenshaw,  4  Rich.  Eq.  14 ; 
V.  Allen,  64  Ala.  98.  See  State  v.  Bolte,  State  v.  Tunnell,  5  Harring.  94 ;  Runkle 
72  Mo.  272.  V.  Gale,  3  Halst.  Ch.  101  ;  9  Rich.  Eq. 

2  King  V.  Hughes,  52  Ga.  600.     No  408. 

such  settlement  is  practicable,  in  fact,  ^  ggg  Mass.  Gen.  Sts.  c.  101.     As  to 

as  many  American  codes  should  be  con-  blending    accounts    as    guardian    and 

strued,  until  at  all  events  the  ward  has  trustee,  see  Lewis  v.  Allred,  57  Ala.  628. 

reached    full   age,    or  a   new   probate  "^  Sage  r.  Hammonds,  28  Gratt.  651. 

guardian  is  fully  clothed  with  his  oflSce.  ^  Gregg   v.   Gregg,    15  N.   H.  190; 

3  Ellis  V.  Scott,  75  N.  C.  108 ;  Man-  Royston  v.  Royston^  29  Ga.  82 ;  Peck 
ning  V.  Manning,  61  Ga.  137.  v.  Braman,  2  Blackf.  141 ;  "Waterman 

*  Conkey  v.  Dickinson,  13  Met.  51  ;  r.  Wright,  36  Vt.  164;  Farnsworth  r. 
Matoon    v.    Cowing,    13    Gray,   387  ;     Oliphant,  19  Barb.  30  ;  State  v.  Grace, 

525 


§  374  THE   DOMESTIC   RELATIONS.  [PAET  IT. 

the  administrator  of  a  deceased  surety  has  been  sometimes 
permitted  to  supply  the  missing  final  account.^  The  admin- 
istrator of  a  deceased  guardian  cannot  invest  the  ward's  funds ; 
nor  can  he  discharge  the  guardian's  general  indebtedness  by 
setting  apart  certain  effects  of  the  guardian's  estate  for  that 
purpose.^  Where  a  guardian  absents  himself  and  has  left  an 
attorney  in  charge  of  the  estate,  such  attorney  ma}^  in  Penn- 
sylvania, be  summoned  by  the  court.^  It  would  appear  that 
a  guardian  cannot  be  cited  to  render  a  final  account  before 
the  ward's  majority,  unless  his  trust  has  been  first  deter- 
mined ;  and  that  his  balances  should,  in  such  case,  be  paid  to 
a  successor  and  not  to  the  court.^ 

The  decree  of  the  court  allowing  a  partial  account,  wherein 
an  item  is  omitted  or  improperly  stated,  does  not  relieve  the 
guardian  from  liability  for  the  error  on  his  subsequent  ac- 
counts. He  must  make  the  necessaiy  correction  as  soon  as 
possible.  If  notes  are  inventoried  and  the  guardian's  ac- 
counts do  not  charge  him  therein  with  the  interest  thereon, 
or  credit  him  with  their  loss  as  worthless,  the  presumption  is 
that  he  has  embezzled  the  property  or  else  neglected  to  make 
collections  ;  and  in  either  case  he  is  chargeable  for  the  full 
amount.^  The  accounts  should  include  only  transactions  be- 
tween guardian  and  ward,  and  should  terminate  with  the  ex- 
piration of  the  trust ;  since  the  relation  is  in  other  respects 
as  between  debtor  and  creditor.^  Valuations  should  be  re- 
duced to  the  lawful  standard  of  currency.'  All  items  are  not 
necessaril}'  proved  by  vouchers ;  small  charges  may  be  allowed 
on  the  guardian's  oath  ;  and  oral  proof  is  frequently  admis- 
sible as  in  the  settlement  of  other  probate  accounts. 

§  374.  The  Same  Subject ;  Items  Allowed  the  Guardian  on 
Account.  —  We  have  anticipated  in  former  chapters  the  gen- 

26  Mo.  87  ;  Hemphill  v.  Lewis,  7  Bush,         3  Petition  of  Getts,  2  Ashm.  441. 
214.     Nor  can  such  surety  allege  waste  *  Hughes  v.  Ringstaff,  11  Ala.  564; 

on  the  part  of  the  guardian's  adminis-  Lewis  v.  Allred,  .57  Ala.  623. 
trator,  as  against  the  ward.    Humphrey  ^  Starrett  z'.  Jameson,  20  Me.  504. 

V.  Humphrey,  79  N.  C.  396.  ^  Cunningham    w     Cunningham,   4 

1  Curtis  V.  Bailev,  1  Pick.  198.  Gratt.  43;  Crowell's  Appeal,  2  Watts, 

2  Moorehead  v.  Orr,  1  S.  C.  n.  s.  304.  295. 

And  see  supra,  §  314  ;   Clark  v.  Tomp-  ''  See  iMcFarlane  r.  Randle,  41  Miss, 

kins,  1  S.  C.  N.  s.  119.  411 ;  Neilson  v.  Cook,  40  Ala.  498. 

626 


CHAP.  VIII.]  guardian's    ACCOUNTS,    ETC.  §  374 

eral  principles  on  Avliich  guardians  are  considered  liable  in 
the  settlement  of  their  accounts:  as  for  instanco  the  payment 
of  interest  on  sums  not  invested,  losses  of  money  and  failure 
to  collect  debts ;  also  the  proper  allowance  for  maintenance 
and  education  of  infants ;  and  other  matters  which  come  be- 
fore our  courts  of  probate  jurisdiction  when  the  accounts  are 
presented  for  approval.  As  the  guardian  is  allowed  his  costs 
and  expenses  in  suits  on  the  ward's  behalf,  so  he  may  charge 
bills  of  professional  counsel  properly  paid  ;  and  this  too  when 
the  charge  was  fairly  occasioned  by  a  contest  over  his  ac- 
counts, which  he  defended  ;  but  he  cannot  make  the  estate 
pay  for  advice  and  services  rendered  on  his  own  account  un- 
der any  colorable  pretext.^  Interest  has  been  allowed  on 
sums  of  money  necessarily  advanced  by  him  to  his  ward  ;  and 
this  seems  reasonable."  And  he  is  to  be  reimbursed  for  all 
reasonable  and  proper  expenses  incurred  by  him  in  the  man- 
agement of  his  ward's  estate.^  As  to  the  guardian's  own 
charges  for  the  maintenance  of  wards,  there  can  be  no  ques- 
tion that  he  is  neither  obliged  as  such  to  maintain  his  wards 
at  his  own  expense,  nor  justified  in  appropriating  their  earn- 
ings to  himself.  But  as  the  services  of  children  and  the  cost 
of  their  board  are  always  mutual  offsets,  the  courts  are  reluc- 
tant to  allow  charges  of  this  sort,  for  or  against  a  guardian 
who  brings  up  his  ward  in  his  own  family ;  more  especially 
where  the  claim  seems  to  have  been  made  up  from  after- 
thought, and  without  previous  stipulation.     Intention,  on  his 


1  McEllienny's  Appeal,  46  Penn.  St.  or  architect  are  ruled  out  strictly  in 
847 ;  Alexander  v.  Alexander,  8  Ala.  some  States,  the  guardian  being  re- 
796;  Neilson  v.  Cook,  40  Ala.  498;  stricted  to  his  statutory  commission. 
State  V.  Foy,  65  N.  C.  265;  Blake  v.  Morgan  r.  Hannas,  49  N.  Y.  6G7.  Other 
Pegram,  101  Mass.  592;  Voessing  v.  States  rule  differently.  A  guardian  who 
Voessing,4Kedf.  360  ;  IMoorez'.  Shields,  keeps  a  store  may  in  good  faith  supply 
69  N.  C.  50.  The  rule  in  some  States  the  ward's  necessaries,  and  hence  charg- 
is  strict  that  a  guardian  who  is  a  coun-  ing  at  customary  rates  of  profit.  Moore 
sellor  cannot  cliarge  for  professional  v.  Shields,  G9  N.  C.  50.  The  guardian 
services  rendered  by  himself.  Morgan  of  a  wealthy  insane  adult  ward  may  fair- 
V.  Hannas,  49  N.  Y.  G67.  But  cf  Blake  ly  claim  compensation  for  luxuries  sup- 
V.  Pegram,  supra.  plied  him,  and  for  personal  visits  and 

2  Hayward  v.  Ellis,  13  Pick.  272.  care  suitable  to  the  ward's  welfare. 
But  see  Evarts  v.  Nason,  11  Vt.  122  May  v.  May,  109  Mass.  252. 


*  Personal  services  as  a  mechanic 


527 


§  374  THE   DOMESTIC   RELATIONS.  [PART   IV. 

part,  to  maintain  the  ward  gratuitously  may  be  inferred  from 
circumstances.  In  this  sense  we  understand  certain  dicta  of 
the  courts  to  the  effect  that  a  guardian  cannot  charge  for  board 
where  he  has  offered  to  bring  up  the  ward  at  his  home  free 
of  expense ;  for  it  is  to  be  supposed  that  there  is  mutuality 
in  all  contracts,  and  that  reasonable  notice  might  terminate 
any  liability  which  had  no  fixed  limit.^  Like  principles  are 
applicable  to  demands  against  the  guardian  for  his  ward's  ser- 
vices, which  courts  in  different  States  have  frequently  had 
occasion  to  consider.^  A  probate  guardian,  who  is  stepfather 
to  his  wards,  will  usually  be  presumed  to  stand  to  them  in 
the  place  of  a  father,  so  far  as  liability  for  their  support  and 
a  right  to  their  services  are  concerned ;  and  this  rule  may 
apply  where  he  occupies  their  house  for  many  years.^  But 
there  are  circumstances  under  which  a  guardian's  promise  to 
the  ward  not  to  charge  him  for  board  would  be  void  for  want 
of  consideration.^  This  general  subject  we  have  dwelt  upon 
already.^ 

Rules  of  equity  still  prevail  to  a  considerable  extent  so  as 
to  hold  guardians  accountable  on  the  usual  footing  of  trustees. 
The  citation  to  render  account  in  the  probate  court  is  a  sum- 
mary proceeding,  resembling  the  bill  in  chancery  for  discov- 
ery. The  guardian  may  correct  mistakes,  but  not  dispute  his 
ward's  rights  at  pleasure.^     He  is  presumably  liable  to  his 


^Manning   v.    Baker,    8    Md.    44;  6ona^c?e  expenses  incurred  in  removing 

Armstrong  v.  Walkup,  9  Gratt.  372;  the  ward  to  another  State.     Cummins 

Hayden  v.  Stone,  1  Duv.  396;  Hendry  v.  Cummins,  2'd  111.  452. 
V.  Hurst,  22  Ga.  312;  Cunningham  v.         SMulhern  y.  McDavitt,  16Gray,404  ; 

Pool,  9  Ala.  615.     Owen  i-.  Peebles,  42  supra,  c.  5. 

Ala.  338,  recognizes  a  guardian's  claim         *  Keith  v.  Miles,  .39  Miss.  442. 
for  keeping  his  ward's  horse,  in  a  proper  ^  A  guardian  who  advances  money 

case.     Equity  disinclines  to  charge  for  for  his  ward  over  and  above  the  income 

a  ward's  maintenance  for  the  benefit  of  his  estate,  in  order  to  set  him  up  in 

of    the   guardian's    general    creditors,  business,  without  obtaining  leave   of 

Griffith  I'.  Bird,  22  Gratt.  73.  the  court,  cannot  charge  his  ward  with 


2  PhiUips  V.  Davis,  2  Sneed,  520 
Calhoun  v.  Calhoun,  41  Ala.  .369 
Crosby  v.  Crosby,  1  S.  C.  n.  s.   337 


it.  Shaw  r.  Coble,  03  N.  C.  377.  Ju- 
dicial consent  to  expenditures  in  excess 
of  the   income   may  be  inferred  from 


Armstrong  v.  Walkup,  12  Gratt.  608.  the  court's  approval  of  the  guardian's 

Among  the  miscellaneous  items  which  regular  accounts.     Cook  v.  Rainey,  01 

have  been  allowed  a  guardian  in  his  Ga.  452  (a  statute  case), 
accounts   may  be  mentioned   that   of         ^  Re  Steele,  65  111  322. 

528 


CHAP.  VIII.]  guardian's   ACCOUNTS,   ETC.  §  375 

ward  for  the  nominal  amount  of  debts  due  to  the  ward's  estate 
which  he  has  failed  to  collect ;  and  if  they  were  not,  by  the 
exercise  of  good  business  judgment,  collectible  for  their  face, 
he  should  be  able  to  show  this.^  He  is  liable  not  only  for 
what  he  actually  receives,  but  what  he  ought  to  receive.^ 
And  where  he  or  any  other  trustee  claims  credit,  upon  settling 
his  account,  for  moneys  expended,  losses,  or  charges,  the  onus 
of  proving  the  correctness  of  the  credit,  by  vouchers  or  other- 
wise, devolves  on  him.^  On  the  other  hand  the  ward's  estate 
is  subject  to  all  liabilities  properly  incurred  in  the  course  of 
the  guardian's  judicious  management  of  it."^ 

§375.  Compensation  of  Guardians.  —  One  rule  has  always 
prevailed  in  England  as  to  the  compensation  of  executors, 
guardians,  and  other  trustees  ;  namely,  that  the  services  ren- 
dered should  be  treated  as  honorary  and  gratuitous.  Chancery 
makes  no  allowance  of  any  sort  be3"ond  a  reimbursement  for 
the  necessary  expenses  actually  incurred.  However  much 
the  honor  of  being  trusted  may  be  deemed  a  fair  equivalent 
for  the  guardian's  time,  trouble,  and  responsibility,  it  is  not 
found  to  suffice  for  receivers  and  other  officers  of  the  Court  of 
Chancery,  whose  fees  may  in  some  measure  tend  sensibly  to 
diminish  the  ward's  sense  of  gratitude  to  the  custodians  of 
his  fortune.  It  is  found  necessary  to  allow  compensation 
to  trustees  in  some  of  the  British  colonies  in  order  to  induce 
suitable  men  to  accept  office ;  and  even  in  the  English  courts 
at  the  present  day  there  is  a  strong  inclination  to  multiply 
exceptions  to  the  general  rule.  Considerations  of  policy  are 
alleged  in  support  of  the  established  doctrine  of  chancery ; 
but  the  arguments  seem  not  unanswerable.  In  this  country 
compensation  is  allowed  the  guardian,  while  the  probate  court 
fees  are  usually  trifling  in  comparison.  And  it  does  not  ap- 
pear that  the  English  rule  as  to  the  gratuitous  services  of 
trust  officers  was  ever  adopted  in  a  single  State.^ 

1  Seigler  v.  Seigler,  7  S.  C.  317.  *  Owens  v.  INIitchell,  38  Tex.  588. 

2  State  V.  Womack,  72  N.  C.  397  ;  5  gee  Story  Eq.  Juris.  §  12G8,  and  n. ; 
Stothoff  V.  Reed,  32  N.  J.  Eq.  213.  and  §  1268  a.  ;  2  Eedf.  Wills,  800-892  ; 

^  Matter  of  Gill,  5  Thomp.  &  C.  237;  2  Wms.  Ex'rs,  1682-1G85,  and  cases 
Newman  v.  Reed,  50  Ala.  297  ;  Hutton  cited.  In  some  parts  of  this  countr}-, 
V.  Williams,  60  Ala.  133.  custom  or  the  local  law  has  established 

•^4  629 


376 


THE   DOMESTIC   EELATIONS. 


[part   IV. 


§  376.    Suit  on  the  Guardian's  Bond  for  Default  and  Miscon- 
duct.—  For  the  default  and  misconduct  of  the  guardian  the 


a  commission  as  the  guardian's  com- 
pensation. In  others,  tl)e  statute  allows 
what  the  court  may  deem  just  and 
reasonable.  The  commission  allowed 
the  guardian  has  varied,  according  to 
different  decisions  and  under  special 
circumstances,  all  the  way  from  one  to 
ten  per  cent,  which  last  may  be  con- 
sidered the  maximum.  Ilolcombe  v. 
Ilolcombe,  2  Beasl.  415 ;  In  re  Har- 
land's  Accounts,  5  Hawle,  323  ;  Walton 
I'.  Erwin,  1  Ired.  Eq.  136  ;  Armstrong 
V.  Walkup,  12  Gratt.  G08.  In  New 
York,  tile  rule  established  for  trustees 
is  five  per  cent  on  sums  not  exceeding 
one  thousand  dollars;  half  that  amoiuit 
upon  all  sums  between  that  and  five 
tliousand  dollars;  and  one  per  cent  on 
all  sums  exceeding  tliat  amount.  Mat- 
ter of  Roberts,  3  Joluis.  Ch.  43.  And 
this  rule  practically  obtains  in  many 
other  States.  One  half  tlie  commission 
is  reckoned  for  sums  received,  and  one 
half  for  sums  disbursed.  They  are  to 
be  computed  by  a  guardian  at  the  foot 
of  partial  accounts  or  about  tlie  time 
of  actual  receipt  and  disbursement, 
and  not  when  they  are  brought  forward 
upon  his  final  account.  Huffer's  Ap- 
peal, 2  Grant,  341  ;  Vanderheyden  v. 
Vanderheyden,  2  Paige,  287.  Where 
commissions  at  the  court's  discretion 
are  allowed,  special  services  performed 
by  the  guardian  may  be  considered  in 
fixing  the  rate  of  commission,  but  not 
as  an  additional  charge.  Yet  it  is 
justly  observed  in  a  Pennsylvania  case, 
that  since  the  guardian  is  a  trustee  for 
custody  and  management,  and  not,  like 
an  executor,  merely  for  distribution, 
wliat  is  allowable  to  the  one  may  not 
always  suffice  for  the  other.  McElhen- 
ny's  Appeal,  46  Penn.  St.  347.  Even 
in  New  York  the  unfairness  of  an  in- 
flexible rule,  applicable  to  all  who  hold 
trust  moneys,  has  led  to  the  assertion 
of  a  doctrine  in  a  recent  case,  which 
threatens  to  disturb  the  chancery  rule, 
formerly   considered   as   well  settled ; 

530 


namely,  that  services  of  a  professional 
or  personal  character,  rendered  the 
ward,  may  be  allowed  to  the  guardian, 
besides  the  usual  commission,  on  the 
ground  that  they  were  rendered  not 
as  guardian  but  as  an  individual. 
Morgan  v.  Morgan,  89  Barb.  20.  In 
Maine,  Massachusetts,  and  other  States 
where  the  court  allows  what  is  reason- 
able, the  guardian  may  charge  specific 
sums  for  special  services,  instead  of  or 
in  addition  to  a  commission,  provided 
the  whole  does  not  exceed  a  fair  rate 
of  comjieusation.  Longley  v.  Hall,  11 
Pick.  120 ;  Rathbuti  v.  Colton,  1-5  Pick. 
471;  Emerson,  Appellant.  32  Me.  159; 
Dixon  V.  Homer,  2  Met.  420 ;  Roach  v. 
Jelks,  40  Miss.  754;  Evarts  v.  Nason, 
11  Vt.  122.  Tlie  ordinary  commission 
is  sometimes  refused  for  disbursement 
of  the  guardian's  final  balance  to  the 
ward,  and  receipt  of  the  original  fund; 
nor  is  it  allowable  on  the  principal  in 
mere  reinvestments.  Commissions  may 
be  forfeited  b}'  the  guardian's  miscon- 
duct :  as  where  the  fund  was  employed 
in  his  own  business ;  or  where  he  was 
removed  from  his  trust ;  but  not,  in 
some  States,  for  the  mere  omission  to 
account  until  cited  in.  Clerk-hire  is 
properly  charged  as  an  expense  to  the 
estate  in  cases  of  magnitude  and  diffi- 
culty, where  such  assistance  is  required. 
Vanderheyden  v.  Vanderheyden,  2 
Paige,  287;  Knowlton  v.  Bradley,  17 
N.  H.  458 ;  Trimble  v.  Dodd,  2  Tenn. 
Ch.  500 ;  Starrett  v.  Jameson,  29  Me. 
504 ;  Royston  v.  Royston,  29  Ga.  82 ; 
Magruder  v.  Darnall,  6  Gill,  269; 
Clowes  V.  Van  Antwerp,  4  Barb.  416; 
Reed  v.  Ryburn,  23  Ark.  47 ;  Neilson 
V.  Cook,  40  Ala.  498 ;  Bond  v.  Lock- 
wood,  33  111.  212.  Commissions  are 
properly  credited  at  the  time  tiie  money 
was  received.  Snavely  v.  Harkrader, 
29  Gratt.  112.  Cf.  May  v.  May,  109 
Mass.  252.  A  guardian  who  is  also 
trustee  should  not  be  allowed  full  com- 
missions  on  both    his    guardian    and 


CHAP,  vin.]  guardian's  bond,  etc. 


§  376 


proper  remedy  is  by  suit  on  the  probate  bond.  And  such 
suits  are  brought  in  the  name  of  the  judge,  or  the  State,  ac- 
cording to  the  requirements  of  statute,  for  the  benefit  of  the 
person  or  persons  injured.^  This  is  the  usual  remedy  for 
creditors  as  well  as  the  ward  himself  and  his  next  of  kin  ;  not, 
however,  the  only  one  open  to  the  former,  as  we  have  already 
seen,  according  to  the  rule  of  some  States.^  In  most  States, 
the  guardian's  bond  cannot  be  sued  until  he  has  been  sum- 
moned  before  the  proper  court  to  account ;  nor  until  leave  of 
that  court  has  been  first  obtained  ;  except  in  certain  cases  of 
debts  which  appear  of  record.^  The  reason  is  that  the  bal- 
ances due  from  the  guardian  and  the  extent  of  his  liability 
cannot  be  properly  ascertained  until  the  accounts  are  pre- 
sented ;  moreover,  the  failure  to  account  in  obedience  to 
judicial  mandate,  or  to  turn  over  the  property  according  to  the 
balance  shown  on  such  accounting,  fixes  the  delinquency. 
So,  too,  while  the  guardian  may  sue  his  ward,  after  the  latter 
attains  majority,  when  it  appears  that  the  final  indebtedness  is 
in  his  own  favor,  he  must  wait  until  the  court  has  ascertained 
and  decreed  its  amount.^ 


trustee  accounts,  where  the  perform- 
ance of  double  services  is  merely  nom- 
inal. Blake  v.  Pegram,  101  Mass.  592. 
Only  on  sums  actually  collected  and 
paid  out  should  a  guardian  charge  com- 
missions. Reeds  v.  Timmins,  52  Tex. 
84.  Voucliers  are  not  needed  to  sus- 
tain items  of  this  character.  Newman 
V.  Reed,  50  Ala.  297.    See  53  Vt.  4(30. 

A  guardian  will  not  be  allowed  com- 
pensation for  taking  care  of  the  trust 
fund  while  he  himself  is  the  borrower 
of  it.  Farwell  v.  Steen,  46  Vt.  678. 
And  see  Pierce  v.  Prescott,  128  Mass. 
140.  As  to  compensation  for  changing 
investments,  repairs,  &c.,  it  is  not  good 
policy  to  allow  it  by  way  of  a  commis- 
sion.    May  V.  May,  109  Mass.  252. 

1  Davis  V.  Dickson,  2  Stew.  370; 
Potter  V.  State,  23  Ind.  607  ;  Pearson  v. 
McMillan,  37  Miss.  588. 

2  Supra,  §§  337,  343,  n. 

8  Stillwell  V.  Miles,  19  Johns.  304  ; 
Bailey  v.  Rogers,  1  Greenl.  186 ;  Salis- 


bury V.  Van  Hoesen,  3  Hill,  77 ;  Jarrett 
V.  State,  5  Gill  &  Johns.  27 ;  Hunt  v. 
White,  1  Cart.  105  ;  Foteaux  v.  Lepage, 
6  Iowa,  123 ;  Amnions  v.  People,  11  111. 
6;  Pratt  t'.  McJunkin,  4  Rich.  5;  Jus- 
tices V.  Willis,  3  Yerg.  461 ;  O'Brien  v. 
Strang,  42  Iowa,  643 ;  Allen  v.  Tiffany, 
53  Cal.  16;  Hailey  v.  Boyd,  64  Ala. 
399;  Ordinary  v.  Heishon,  42  N.  J. 
L.  15.  But  a  guardian  cannot  pre- 
vent an  action  on  his  bond  by  failure  to 
account.  Wann  v.  People,  57  111.  202. 
As  for  chancery  bill  of  account,  in  case 
of  quasi  guardianship,  see  next  c.  As 
to  abatement  of  summary  proceedings 
to  account  bj'  the  guardian's  death,  see 
Harvey  v.  Harvey,  87  111.  54. 

*  Smith  V.  Ph'ilbrick,  2  N.  H.  395 ; 
Shollenberger's  Appeal,  21  Penn.  St. 
337.  In  certain  peculiar  instances, 
where  the  extent  of  tlie  guardian's  lia- 
bility has  been  otherwise  as  definitely 
determined  as  it  could  be  by  an  ac- 
counting, it  is  held  that  a  decree  may 

631 


§377 


THE  DOMESTIC   RELATIONS. 


[part   IV. 


§  377.  The  Same  Subject;  Remedies  against  and  on  behalf  of 
Sureties.  —  As  to  sureties,  it  is  said  that  they  may  be  sued 
without  a  previous  suit  against  the  principal ;  the  common-law 
rule,  that  an  executor  must  first  be  found  guilty  of  devastavit^ 
being  held  inapplicable  to  guardians. ^  To  all  suits  on  guar- 
dians' bonds  there  is  a  limitation  prescribed  by  law.  Thus 
in  Massachusetts  the  period  is  four  years  from  the  time  the 
guardianship  terminates,  whether  by  death,  removal,  or  resig- 
nation of  tlie  guardian,  or  the  arrival  of  the  infant  ward  at 
full  age  ;  and  the  same  rule  applies  to  general  and  special 
bonds. 2  In  some  other  States  the  period  is  five  years.^  In 
Indiana,  it  is  three  years.^  Where  no  special  period  is  fixed 
by  law,  the  ordinary  limitation  to  suits  on  sealed  instruments 
must  be  held  to  apply.^ 

Sureties,  as  well  as  the  guardian,  are  concluded  by  the 
amount  adjudged  due  from  the  guardian  on  settlement  of  his 
accounts.^     They  cannot  become  parties  to  the  accounting  of 


be  entered  against  the  guardian  for  the 
amount,  though  no  account  has  been 
taken.  Sage  v.  Hammonds,  27  Gratt. 
651 ;  and  even  tliat  an  accounting  is 
not  a  prerequisite  to  an  action  against 
the  sureties.  Girvin  v.  Hickman,  21 
Hun,  316.     See  55  Iowa,  110. 

1  State  V.  Strange,  1  Smith  (Ind  ), 
.367;  Call  ;;.  Ruffin,  1  Call,  3.33;  1  Met. 
(Ky.)  22.  And  see  Horton  v.  Horton, 
4  Ired.  Eq.  54  ;  Moore  v.  Baker,  39  Ala. 
704;  Moore  v.  Hood,  9  Rich.  Eq.  311; 
Potter  V.  Hiscox,  30  Conn.  508;  Clark 
V.  Montgomery,  23  Barb.  404. 

2  Loring  v.  Alline,  9  Cush.  68.  And 
see  Favorite  v.  Booher,  17  Ohio  St.  548. 

3  Johnson  v.  Chandler,  15  B.  Monr. 
584. 

4  State  V.  Hughes,  15  Ind.  104. 

s  Ragland  v.  Justices,  10  Ga.  65; 
Woodbury  v.  Hammond,  54  Me.  332. 
The  limitation  begins  to  run  from  the 
time  when  the  guardian  settles  his  ac- 
count and  is  ordered  to  pay  over,  not 
from  the  date  of  his  informal  account- 
ing to  the  ward,  the  statute  designating 
the  time  of  a  guardian's  "discharge." 
Orleans  Probate  Court  v.  Child,  51  Vt. 
532 


82.    Cf.  Motes  v.   Madden,    14  S.  C. 
488. 

^  Commonwealth  v.  Rhoads,  37  Penn. 
St.  ■  60.  In  numerous  late  instances 
however,  a  decree  rendered  against  a 
guardian  is  held  not  conclusive  against 
sureties  who  were  not  parties  to  the 
final  accounting.  So  that  the  latter 
may  show,  in  reduction  of  their  liability, 
that  the  guardian  failed  to  charge  the 
wards  with  boarding,  tuition,  or  his 
own  compensation,  or  made  improper 
charges  in  their  favor  against  himself. 
Davenport  v.  Olmstead,  43  Conn.  G7 ; 
State  V.  Hull,  53  Miss.  626;  Kinsey  v. 
State,  71  Ind.  32 ;  State  v.  Hoster,  61 
Mo.  544 ;  Sanders  v.  Forgasson,  3  Baxt. 
249.  So  may  the  sureties  have  the 
benefit  of  a  debt  lawfully  chargeable  in 
account  with  tlie  ward,  which  the  cred- 
itor releases  bona  fide  to  the  guardian 
personally.  Kinsey  v.  State,  71  Ind. 
32. 

Special  penalties  may  be  assessed 
under  some  local  statutes,  on  a  default- 
ing guardian's  bond.  Stroup  v.  State, 
70  Ind.  495.  Sureties  cannot  set  up 
tlieir  principal's  misappropriation  with 


CHAP.  VIII.]  guardian's   BOND,   ETC.  §  377 

their  principal,  either  in  the  original  proceedings  or  on  revis- 
ion.i  Where  sureties  are  compelled  to  respond  in  damages 
for  the  default  of  their  guardian,  they  may  seek  indemnity 
from  his  property.  Equity  also  allows  them  to  enforce  con- 
tribution as  among  themselves.  Thus,  if  co-sureties  on  one 
bond  pay  the  whole  amount  of  a  deficiency,  they  may  use  the 
other  bond  to  obtain  a  proportional  reimbursement.^  So 
where  there  are  three  co-sureties,  and  one  proves  insolvent, 
the  surety  who  has  responded  in  damages  to  the  full  extent 
may  compel  his  solvent  co-surety  to  pay  him  one-half  of  the 
amount.'^  A  surety  may  always  take  security  from  his  prin- 
cipal for  his  own  indemnity,  and,  if  default  occurs,  reimburse 
himself  from  the  principal's  own  property  like  any  other 
creditor.  But  it  stands  to  reason  that  the  surety  of  a  guar- 
dian cannot  secure  himself  by  any  pledge  of  the  ward's 
property  ;  for  this  would  be  permitting  fraud  in  order  to 
prevent  fraud,  and  the  infant's  pretended  security  would  be 
to  him  no  security  at  all.*  In  a  suit  against  sureties  on  a 
guardianship  bond,  if  one  of  the  sureties  is  dead,  his  personal 
representatives  should  be  joined.^ 

the  ward's  connivance  while  under  age.  *  Poultney  v.  Randall,  9  Bosw.  232 ; 

Judge  of  Probate  v.  Cook,  57  N.  H.  450.  Foster  v.  Bisland,  23  Miss.  296  ;  Miller 

See  also  Scobey  v.  Gano,  35  Ohio  St.  v.    Carnall,   22   Ark.   274;    Howell  v. 

550.  Cobb,  2  Cold.  104. 

1  Li  re  Scott's  Account,  36  Vt.  297.  5  Lynch  v.  Rotan,  39  HI.  14.  A  re- 
But  see  Curtis  v.  Bailey,  1  Pick.  108.  lease  of  a  surety   by  payment  of  an 

2  Commonwealth  v.  Cox,  36  Penn.  amount  less  than  the  principal  owed  is 
St.  442.  See  Baugh  v.  Boles,  35  Ind.  not  a  full  discharge  of  the  principal. 
624.  Carroll  v.  Corbitt,  57  Ala.  579. 

*  Waller  v.  Campbell,  25  Ala.   544.  As  to  suits  on  a  guardian's  bond,  on 

See  State  v.  Paul's   Ex'r,  21  Mo.  51 ;  the    relation   of    one   or  more  wards, 

Jamison  v.   Crosby,  11  Humph.  273;  where  there  are  other  wards,  see  Col- 

Hocker  v.  Woods,  33  Penn.  St.  466;  burn  v.  State,  47  Ind.  310;  Scheel  v. 

Haygood  v.  McKoon,  49  Mo.  77.  Eidman,  68  111.  193. 

533 


§  379  THE  DOMESTIC  KELATIONS.  [PAET  IV. 


CHAPTER  IX. 

EIGHTS  AND   LIABILITIES   OF    THE   WARD. 

§378.  General  Rights  of  the  Ward.  —  Having  treated  at 
length  of  the  rights  and  liabihties  of  guardians,  their  appoint- 
ment and  removal,  and  the  settlement  of  their  accounts,  it 
only  remains  for  us  to  consider  the  powers  and  duties  of  the 
ward  himself.  Some  of  these  have  been  already  noticed  inci- 
dentally ;  others,  so  far  as  minor  wards  are  concerned,  fall 
within  the  general  scope  of  Infancy  ;  but  a  few  legal  prin- 
ciples remain  for  discussion  under  the  present  head,  to  which 
we  shall  now  direct  the  reader's  attention. 

§  379.  Doctrine  of  Election  as  to  Wards,  Insane  or  Infant. — 
There  is  a  distinction  to  be  drawn  between  infant  wards,  and 
insane  persons  or  spendthrifts  under  guardianship.  As  to 
the  former,  the  law  recognizes  a  growing  responsibility,  as  it 
were,  on  their  part ;  a  postponement  of  many  rights  and  duties 
to  the  period  of  maturity,  but  not  utter  and  total  suspension 
or  loss.  Hence,  sales  made  and  contracts  performed  while  an 
infant  ward's  disabilities  last  are  frequently  held  subjected  to 
his  future  approval,  being  treated  as  neither  absolute  nor  yet 
void  in  the  mean  time.  Hence  is  that  principle  of  election  so 
constantly  asserted  at  law  on  his  behalf;  hence,  too,  the  right 
he  exercises,  when  of  age,  of  passing  in  review  accounts  old 
and  almost  forgotten,  to  ascertain  the  balance  justly  due  him. 
But  as  to  insane  persons  and  spendthrifts,  their  responsibili- 
ties are  for  the  time  blotted  out ;  the  disability  may  be 
temporary  or  it  may  be  permanent ;  but  while  it  lasts  it  is 
complete ;  and  it  may  be  essential  that  transactions  on  their 
behalf  should  stand  or  fall,  irrespective  of  their  choice,  and 
beyond  the  possibility  of  their  future  interference.  This 
suggestion  we  throw  out  simply  by  way  of  caution  ;  for  while 
534 


CHAP.  IX.]     RIGHTS   AND   LIABILITIES   OF   THE   WARD.    §  381 

the  same  principles  are  constantly  applied  by  inference  to  all 
wards  alike,  it  is  unsafe  to  draw  broad  conclusions  or  argue 
with  confidence  from  mere  analogies  between  these  different 
classes  of  wards.^ 

§  380.   Same  Subject ;   Insane  Persons  and  Infants   Contrasted. 

—  Thus  it  is  asked  whether  an  insane  person  under  guardian- 
ship can  make  a  will,  if  in  fact  compos  'mentis.  Clearly,  ques- 
tions of  mental  capacity  and  undue  influence  may  arise 
whenever  a  will  is  presented  for  probate.  And  prima  facie 
an  insane  person,  if  not  a  spendthrift,  under  guardianship,  is 
7ion  compos  mentis,  and  his  testamentary  capacity  may  well  be 
doubted.  It  is  settled,  however,  in  the  State  of  Massachu- 
setts that  a  valid  will  may  be  executed  by  a  person  under 
such  guardianship,  notwithstanding  the  circumstances  of  his 
situation  ;  the  fact  of  testamentary  capacity  at  the  date  of 
execution  being  open  to  proof.^  As  to  the  contract  of  a 
spendthrift  or  insane  person  made  before  he  was  placed  under 
guardianship,  the  law  favors  the  guardian's  right  of  disaffirm- 
ance to  a  certain  extent,  notwithstanding  the  ward  was  an 
adult  when  the  contract  was  made ;  on  the  ground,  appar- 
ently, that  the  person  now  a  ward  was  not  fit  to  make  a  con- 
tract in  his  own  right  which  should  bind  his  estate.^  And 
yet  the  rule  here  must  differ  greatly  from  that  applicable  to 
infants. 

§  381.  Responsibility  of  Guardian  to  "Ward  as  Wrong-doer,  &c. 

—  For  assault  and  battery,  a  ward,  like  all  other  persons,  is 
entitled  to  damages.  But  where  his  guardian  is  the  offender, 
there  are  technical  difficulties  in  the  way  of  maintaining  a 
suit.  Many  authorities  allow  an  infant  to  sue  his  guardian 
by  next  friend ;  but  a  spendthrift,  it  is  said,  cannot  do  so. 
His  remedy  may  be  found  in  getting  the  guardian  removed 
for  misconduct  and  securing  the  appointment  of  a  successor, 

1  Thus,  in  Vermont,  it  is  held  that         2  Breed  v.  Pratt,  18  Pick.  115. 
a  spendthrift  may  be  compelled  to  give         ^  Coombs  v.  Janvier,  2  Vroom,  240  ; 

security  to  the  town  of  his  settlement  Chandler   v.  Simmons,  97  Mass.  508. 

against  loss  by  his  becoming  charge-  But  see,  as   to  the  wife's   agency   to 

able  afterwards  as  a  pauper,  as  a  con-  manage  his  business,  Motley  v.  Head, 

dition  for  his  release  from  guardianship.  43  Vt.  633. 
Williston  V.  White,  11  Vt.  40. 

535 


§  382  THE  DOMESTIC   RELATIONS.  [PAKT   IV. 

or  perhaps  obtaining  his  discharge  from  guardianship  alto- 
gether. An  action  can  then  be  brought  by  himself  or  the 
new  guardian,  as  the  case  may  be.  The  guardian  may  in  all 
cases  be  held  criminally  responsible  for  the  injury  committed.^ 

A  guardian  may  be  restrained  by  injunction  from  commit- 
ting waste.  So  he  is  responsible  for  damages  thus  occasioned ; 
and  it  has  been  held  that  a  judgment  against  sureties  on  the 
guardian's  bond  for  waste  committed  by  the  guardian  will  not 
before  satisfaction  bar  a  suit  by  the  ward  against  one  who 
participated  in  the  waste.^  The  ward  may  also  sue  for  use 
and  occupation,  although  he  has  a  general  guardian.^  Where 
one  assumes  to  be  guardian  or  agent  of  a  guardian,  and  enters 
an  infant's  lands,  the  latter  may  elect  to  treat  him  as  a  wrong- 
doer, and  bring  trespass,  or  charge  him  as  a  guardian.^  So 
where  a  guardian  wrongfully  holds  over.  But  the  ward  can- 
not sue  his  guardian  for  money  had  and  received.  His  proper 
course,  at  least  in  this  country,  is  to  institute  proceedings  for 
the  latter's  removal,  and  then  to  sue  on  the  official  bond.^ 

§  382.  Ward's  Action  or  Bill  for  Account ;  Limitations,  &c.  — 
Whenever  guardianship  has  been  terminated,  an  action  of 
account  lies  iu  favor  of  the  ward.  And  this  action  is  brought 
by  the  new  guardian,  or  by  next  friend,  or  by  the  ward  him- 
self, if  the  period  of  his  legal  disability  has  expired.  While 
his  guardianship  continues,  chancery  permits  the  ward  by  next 
friend  to  file  his  bill  against  the  guardian  for  account.  But 
this  seems  to  apply  rather  to  chancery  than  probate  guar- 
dians ;  since  direct  proceedings  for  account  in  the  court  which 
issued  letters  of  guardianship,  followed  by  removal  of  the 
guardian,  if  unfaithful,  and  suit  on  his  probate  bond,  afford 
the  infant  under  such  guardianship  an  ample  and  expeditious 
remedy.  But  for  chancery  guardians,  purely  testamentary 
guardians,  and  quasi  guardians,  and  under  peculiar  circum- 
stances, the  more  expensive  and  complicated  process  of  a  bill 

1  Mason  v.  Mason,  19  Pick.  506.  331  ;  Sawyer  v.  Knowles,  33  Me.  208. 

■•^  Powell  V.  Jones,  1  Ired.  Eq.  337.  And  see  Chilton  v.  Cabiness,  14  Ala. 

See  Bank  of  Virginia  v.  Craig,  6  Leigh,  447. 
399;  Hill.  Injunctions,  412.  *  Sherman  v.  Ballou,  8  Cow.  304; 

3  Porter   v.   Bleiler,   17  Barb.    149.  Blomfield  v.  Eyre,  8  Beav.  250. 
See  Senseman's  Appeal,  21  Penn.  St.         ^  Brooks  v.  Brooks,  11  Cush.  18. 

536 


CHAP.  IX.]    RIGHTS   AND  LIABILITIES   OF   THE   WAED.    §  382 

in  equity  becomes  the  necessary  resort.  And  this  in  England 
is  still  the  usual  course  of  procedure,  while  in  most  parts  of 
the  United  States  it  has  gradually  gone  out  of  use  or  has  been 
superseded  altogether.^  But  in  some  cases  of  quasi  guardian- 
ship in  this  country,  — the  probate  court  having  no  jurisdic- 
tion at  all  in  the  premises,  — a  quasi  ward  on  reaching  full  age 
has  been  allowed  to  sue  in  assumpsit  for  money  in  the  quasi 
guardian's  hands  ;  for  here,  as  it  would  appear,  the  old  action 
of  account  was  always  proper.^ 

The  ward's  right  to  call  his  guardian  to  account  may  be 
barred  by  limitation,  computed  from  the  time  he  becomes  com- 
petent to  act.  In  Pennsylvania,  it  is  said  that  the  same  prin- 
ciple applies  as  in  other  legal  proceedings  ;  and  eighteen  years' 
delay  after  the  ward  attains  majority  has  been  held  fatal  to  a 
suit.^  But  in  Illinois  the  rule  is  differently  stated,  and  the 
guardian's  liability  to  account  is  there  considered  to  last  as 
long  as  the  bond  continues  in  force  ;  the  citation  to  account 
before  the  probate  court  being  merely  a  means  to  ascertain 
delinquency  as  the  foundation  of  a  suit,  and  not  of  itself  a 
suit  at  law  or  in  equity.*  The  former  may  be  regarded  as 
the  true  doctrine  for  chancery  guardianship  ;  the  latter  for 
probate  guardianship.  The  guardian's  administrator  in  either 
case  should  close  up  the  trust  accounts,  if  not  already  settled, 
before  he  makes  distribution  ;  since  he  may  otherwise  remain 
liable  for  many  years. ^  But  in  most  States  the  general  sub- 
ject of  limitation  in  all  trusts  is  expressly  regulated  by  statute. 

Short  delays  by  the  ward,  after  coming  of  age,  to  require 
accounts  and  institute  a  suit  on  the  bond,  are  not  to  be  con- 

1  Monell   V.   Monell,   5  Johns.  Cli.  for  account,  see  Sage  v.  Hammonds,  27 

283;   Linton   v.   Walker,   8   Fla.  144;  Gratt.  651. 

Swan  V.  Dent,  2  Md.  Cli.  Ill;  Lemon  2  Pickering  v.  De  Kochemont,  45  N. 

V.  Hansbarger,  6  Gratt.  301  ;  Manning  H.  67  ;  Field  v.  Torrey,  7  Vt.  372. 

V.  Manning,  Gl  Ga.  137  ;  Macphers.  Inf.  3  Bones'  Appeal,  27  Penn.   St.  492. 

259,  348 ,  Fanning  v.  Chad  wick,  3  Pick.  See  Magruder  v.  Goodwyn,  P.  &  H.  561 ; 

424;   Jones  v.  Beverly,   45  Ala.   161.  Adams  r.  Riviere,  59  Ga.  793. 

The  sureties  under  a  void  probate  ap-  *  Gilbert?;.  Guptill,  84111.  112.  And 

pointnient  may   thus  be  held  respon-  see  last  c. 

sible  together  with  tlie  principal.     Cor-  5  Musser  v.  Oliver,  21  Penn.  St.  362. 

bitt   V.    Carroll,   50  Ala.   315.     As   to  See  Felton  v.  Long,  8  Ired    Eq.   224 ; 

appointing  a  receiver  on  the  ward's  bill  Mitchell  v.  Williams,  27  Mo.  399  ;  Pear- 
son V.  McMillan,  37  Miss.  588. 

537 


§  384  THE   DOMESTIC   KELATIONS.  [PART    IV. 

strued  to  the  prejudice  of  his  rights  against  either  guardian 
or  sureties. 1  But  one  who  has  been  under  guardianship  is 
chargeable  with  constructive  notice  of  the  probate  papers  on 
file,  and  proceedings  in  the  court  relative  thereto,  and  should 
prosecute  his  rights  seasonably.^  And  special  circumstances, 
such  as  a  final  settlement  with  the  ward  in  connection  with 
lapse  of  time,  make  the  barrier  stronger.^ 

§  383.  Ward's  Right  to  recover  Embezzled  Property,  &c.  — 
Courts  of  chancery  will  always  aid  the  ward  in  recovering 
property  embezzled,  concealed,  or  conveyed  away  in  fraud  of 
his  rights.  The  proper  mode  of  procedure  is  by  bill  in  equity. 
And  while  a  probate  guardian  suspected  of  fraud  should  be 
cited  to  account,  it  has  been  held  that  his  estate  being  in- 
solvent and  his  sureties  irresponsible,  it  is  not  necessary  for 
the  ward  to  sue  them  before  he  can  file  a  bill  to  recover  such 
property  as  he  can  trace."^  A  summary  process  in  the  nature 
of  an  inquisition  is  provided  by  statute  in  some  States,  for 
ascertaining  the  whereabouts  of  stolen  and  missing  property 
belonging  to  wards,  by  means  of  which  all  suspected  persons, 
including  tlie  guardian  himself,  can  be  summoned  before  the 
probate  court  to  answer  lawful  inquiries  under  oath.^ 

§  384.  Fraudulent  Transactions  set  aside  on  Ward's  Behalf. — 
Fraudulent  transactions  cannot  stand  as  against  the  ward. 
And  in  cases  of  this  sort,  equity  will  go  to  the  substance 
rather  than  the  form,  in  order  to  ascertain  the  real  motives 
of  one  who  professes  to  turn  over  trust  property  to  third 
parties,  and  will  do  equity  if  possible.  Where  a  guardian, 
for  instance,  transfers  a  note  with  words  importing  trust  to 
his  private  creditors  as  security  for  his  own  debt,  the  ward 
can  follow  it  into  their  hands,  or  against  other  parties,  and 
stop  payment,  whether  sufficient  consideration  was  paid  by 
the  holder  or  not.^  But  in  all  cases  of  this  sort,  third  parties 
should  have  some  notice,  actual  or  constructive,  of  the  exist- 
ence of  a  trust ;  otherwise  they  cannot  be  made  to  suffer  loss 

1  Pfeiffer  v.  Knapp,  17  Fla.  144.  *  Hill  v.  Mclntire,  39  N.  H.  410. 

2  Robert  v.  Morrin,  27  Mich.  306.  5  Sherman  v.  Brewer,  11  Gray,  210. 

3  Railsback  v.  Williamson,  88  111.  ^  Lockliart  v.  Phillips,  1  Ired.  Eq. 
494.  342;  Leiuley  v.  Atwood,  05  N.  C.  46. 

638 


CHAP.  IX.]    RIGHTS   AND   LIABILITIES    OF    THE   WARD.     §  384 

further  than  the  usual  rules  of  stolen  property  apply.^  Rights 
of  wards  to  real  estate  are  frequently  protected  on  these  prin- 
ciples. Thus,  where  a  mother  interested  in  certain  lands  with 
her  children  obtained  partition  after  being  appointed  their 
guardian,  bought  in  the  premises,  and,  without  paying  the 
full  purchase-money,  gave  a  mortgage,  taking  an  assignment 
to  herself  as  guardian,  the  claim  of  the  mortgagee  with  notice 
was  postponed  to  the  children's  share.^  So  where  a  guardian 
who  held  a  mortgage  in  his  own  right  agreed  with  the  mort- 
gagor to  substitute  the  ward's  money  for  his  own,  letting  the 
securities  remain  as  before,  this  was  held  to  be  an  equitable 
investment  of  the  ward's  money,  and  good  against  any  subse- 
quent disposition  which  the  guardian  might  make  while  in  fail- 
ing circumstances,  to  secure  his  own  creditor .^  The  guardian's 
collusion  with  third  parties  to  defeat  any  equity  of  the  ward 
in  land  cannot  prevail  against  the  ward  who  seeks  in  season 
to  set  the  conveyance  aside.*  And  in  any  strong  case  of  an 
illegal  sale  of  the  ward's  property  contrary  to  statute,  and 
the  conversion  of  the  proceeds  to  the  guardian's  own  use,  a 
ward  has  not  only  his  remedy  upon  the  guardian's  bond,  but 
can  repudiate  the  sale  and  recover  his  property.^ 

But  fraud  is  a  question  of  evidence.  And  the  payment 
of  a  debt  to  a  guardian  before  it  is  due  is  not  sufficient  in 
itself  to  establish  an  unfair  purpose.  Hence  it  was  decided 
in  a  North  Carolina  case,  that  where  one  owing  a  bond  to  a 
guardian  in  failing  circumstances,  the  bond  being  in  behalf 
of  the  ward,  and  not  yet  due,  held  also  a  note  against  the 
guardian  himself,  which  he  gave  to  an  attorney  to  collect, 
with  explicit  instructions  not  to  make  an  exchange,  but  to 
collect  the  note  given  him,  and  with  the  proceeds  to  take  up 
the  bond  due  the  guardian,  and  such  attorney  received  a 
bank  check  from  the  guardian,  and  believing  the  money  to  be 
in  bank,  and  that  the  check  was  as  good  as  money,  returned 

1  Hill  V.  Johnston,  3  Ired.  Eq.  432.  Gannaway    v.   Tapley,   1    Cold.   572 ; 

^  Messervey  v.  Barelli,  2  Hill  Ch.  Robinson  v.  Robinson,  22  Iowa,  427. 
567.  4  Beazley   v.   Harris,   1    Busli,  533. 

3  Evertson  v.  Evertson,  5  Paige,  644.  See  McFarland  v.  Conlee,  44  111.  455. 
In  this  case,  the  creditor  had  not  even         &  State  v.  Murray,  24  Md.  310.     See 

notice  of  the  ward's  rights.     And  see  infra,  §  386. 

539 


§  385  THE  DOMESTIC   RELATIONS.  [PART   IV. 

the  note  to  the  guardian,  and  took  np  the  bond  in  his  hands, 
these  acts  having  been  performed  in  good  faith,  the  ward 
could  not  pursue  his  former  debtor.^. 

§  385.  Ward's  General  Right  to  repudiate  Guardian's  Trans- 
actions ;  His  Right  of  Election.  —  We  have  seen  that  the 
transactions  of  a  guardian  on  behalf  of  his  infant  ward  are 
valid,  if  within  the  scope  of  his  general  powers,  or  author- 
ized by  the  courts  of  equity ;  sustainable,  though  neither 
within  the  scope  of  his  powers,  nor  previously  authorized, 
if  the  court  afterwards  deems  them  prudent  or  beneficial  to 
the  ward  ;  in  other  cases,  subject  to  the  ward's  own  dis- 
affirmance on  reaching  majority.  Herein  consists  the  infant's 
right  of  election.  Few  acts  of  the  guardian  can  be  pro- 
nounced valid,  except  in  the  sense  that  they  are  authorized, 
either  generally  or  specially,  by  the  court  which  exercises 
supervision  ;  and  few  of  his  transactions  can  be  so  utterly 
without  authority  as  to  be  absolutely  void  |jgr  se.  The  gen- 
eral rule  of  election  recognizes,  then,  two  principles :  first,  the 
privilege  of  the  infant  ward,  on  attaining  full  age  to  avoid  his 
guardian's  transaction ;  second,  the  right  of  courts  of  equity 
to  control  this  privilege  by  interposing  to  pronounce  the  trans- 
action good.  The  whole  doctrine,  therefore,  seems  in  strict 
accordance  with  that  more  general  rule,  that  the  accounts 
of  the  guardian  are  open  to  the  inspection  of  the  ward  at 
majority,  and  may  be  disputed  down  to  the  smallest  item. 
And  where,  as  in  the  case  of  probate  guardians,  settlements 
out  of  court  do  not  dispense  with  final  returns  for  preserva- 
tion and  public  record,  the  tendency  of  the  decisions  must 
be  in  favor  of  bringing  the  question  of  affirmance  or  dis- 
affirmance of  the  guardian's  transaction  before  the  court, 
instead  of  leaving  it  to  acts  of  the  late  ward  in  pais.  These 
principles  suffice  for  general  application  to  compromises,  sub- 
missions to  arbitration,  investments  and  reinvestments  of 
personal  property,  and  similar  transactions,  undertaken  by 
the  guardian  on  the  strength  of  a  previous  order  of  court,  or 

1  Wynne  v.  Benbury,  4  Jones  Eq.  v.  Bradley,  5  Ired.  Eq.  136  ;  Dawson  v. 
395.  And  see,  as  to  fraud  generally,  Massey,  1  Ball  &  B.  329 ;  Henry  v.  Pen- 
Story  Eq.  Juris.  §§  317-320  ;   Harrison    nington,  11  B.  Monr.  55. 

540 


CHAP.  IX.]    RIGHTS  AND   LIABILITIES   OF   THE  WAED.    §  385 

at  the  risk  of  its  subsequent  approval.^  Yet,  statutes  some- 
times interpose  to  render  such  transactions  absolutely  perfect 
on  permission  of  the  court. 

But  as  to  transactions  which  involve  the  purchase  or  sale 
of  real  estate  on  the  infant  ward's  behalf,  the  rule  is  very- 
strict,  as  we  have  already  seen.  The  ward  is  not  bound  even 
by  his  guardian's  exchange  of  his  lands  by  way  of  equivalent.^ 
A  defective  sale  of  real  estate  under  the  statute  may  in  some 
States  be  set  aside  on  a  bill  in  equity  filed  by  the  infant 
against  the  guardian  and  the  purchasers.^  And  where  the 
guardian  contracts  to  buy  real  estate  for  the  ward's  benefit, 
the  ward,  on  reaching  majority,  may  either  complete  the  con- 
tract or  reject  it,  and  look  to  the  guardian  for  payment.* 
But  he  cannot,  in  absence  of  fraud,  compel  the  vendor  to 
refund  the  money  paid  down  as  a  bonus.^  Nor  can  he,  having 
once  renounced,  seek  to  be  relieved  against  such  renunci- 
ation.^ The  right  of  election  goes  to  the  ward's  personal 
representatives  if  he  dies  under  age.''  And  it  would  appear 
to  be  a  general  principle  that  where  the  ward,  after  arriving 
of  age,  with  full  knowledge  of  all  the  facts  and  in  the  absence 
of  fraud,  receives  and  retains  the  purchase-money  arising  from 
the  guardian's  sale  of  his  land,  he  cannot  question  the  valid- 
ity of  the  sale  afterwards.^  In  other  words,  the  ward  may 
choose  whether  to  repudiate  the  sale  and  recover  the  land, 
or  ratify  it  and  claim  the  purchase-money. 

A  resulting  trust  to  the  ward  may  be  established,  on  his 


1  Barnaby  v.  Barnaby,  1  Pick.  221.         6  pioyd  v.  Johnson,  2  Litt.  109. 
See  siij)ra,  cs.  6,  8.  '  Singleton   v.  Love,   1  Head,  357. 

2  Morgan  v.  Johnson,  68  111.  190.  Whether  the  right  of  election  applies 
8  2  Kent  Com.  230 ;  Eckford  v.  De  where  the  guardian  took  land  in  dis- 

Kay,  8  Paige,  89 ;  Westbrook  v.  Com-  charge  of  a  predecessor's  indebtedness, 

stock,  Walker  Ch.  314.     See  supra,  c.  see    Beam   v.  Froneberger,  75  N.   C. 

7.    As  to  adjustment  of  rents  and  im-  540 ;    Clayton  v.  McKinnon,  54   Tex. 

provenients  in  sucli  cases,  see  Anderson  206. 

V.  Layton,  3  Bush,  87;    Holbrook   v.         8  Deford  v.  Mercer,  24  Iowa,  118; 

Brooks,   33   Conn.   347 ;    Summers    v.  Parmele    v.   McGinty,   52    Miss.   476 ; 

Howard,  33  Ark.  490.    And  see  Tatum  Shorter  v.  Frazer,  64  Ala.  74  ;  O'Con- 

V.  HoUiday,  59  Mo.  422.  ner  v.  Carver,  12  Heisk.  436.     See  post, 

*  Loyd  V.  Malone,  23  111.  43 ;  Hopk.  Part  V.  c.  5,  as  to   disaffirmance  by 

337.  infant  without  restitution.     See  Bevis 

5  Yerger  v.  Jones,  16  How.  30.  v.  Heflin,  63  Ind.  129. 

541 


§  386  THE  DOMESTIC   EELATIONS.  [PART  IV. 

election,  in  lands  which  the  guardian  has  taken  in  his  own 
or  another's  name,  but  upon  consideration  out  of  the  ward's 
estate.^  And  a  guardian  may  for  convenience  have  taken 
real  estate  or  even  mortgage  notes  or  other  securities  in  his 
own  name,  and  yet  by  his  dealings  show  a  plain  intent  to 
hold  it  in  trust  for  his  ward,  subject  to  expenses  incurred  in 
its  management  and  accounting  for  its  income  and  proceeds, 
and  giving  the  ward  the  right  to  claim  title  by  proceedings  in 
equity  or  otherwise .^ 

§  386.  Same  Subject;  Resulting  Trusts;  Guardian's  Misuse  of 
Funds ;  Purchase  of  Ward's  Property,  &c.  —  All  advantageous 
bargains  which  a  guardian  makes  with  the  ward's  funds  are 
also  considered  subject  to  the  ward's  election,  either  to  repu- 
diate or  to  uphold  the  contract  and  take  the  profits.  This 
applies,  in  general,  to  improper  acts ;  as  where  the  guardian 
speculates  with  the  trust  funds,  or  invests  them  in  his  own 
business,  or,  in  a  word,  converts  them  to  his  own  use.  The 
ward  may  either  take  the  investment  as  he  finds  it,  with  all 
the  profits,  or  demand  the  original  fund,  with  interest  ; 
though  he  cannot  avoid  a  transaction  in  part  and  ratify  in 
part.^  And  so  as  to  electing  to  take  land  which  has  enhanced 
in  value  since  the  guardian  took  title  to  himself.*  For  it  is 
right  that  the  ward  should  enjoy  all  the  advantages  which 
have  accrued  from  the  use  of  his  own  money  ;  and  it  is  also 
right  that  the  guardian  should  not  derive  gain  from  the  ward's 
loss.  The  old  rule  of  chancery  in  this  respect  has  been  grad- 
ually relaxed ;  so  that  many  acts  of  a  trustee,  which  might 
once  have  been  considered  fraudulent  and  void,  are  now 
deemed  voidable  only.^ 

Thus  it  is  that  the  rule  may  now  be  considered  well  settled, 
that  the  guardian  who  buys  at  the  sale  of  his  ward's  lands  or 


1  Hamnett's  Appeal,  72   Penn.   St.  nett,  17  Ala.  006  ;  Singleton  v.  Love,  1 
837;    Pfeiffer  v.   Knapp,   17  Fla.   144;  Head,  357  ;  White  v.  Parker,  8  Barb. 
Summers    v.   Howard,   33    Ark.   490  ;  48  ;  Jones  v.  Beverl}-,  45  Ala.  IGl. 
Sterling  v.  Arnold,  54  Ga.  690 ;  White-         *  See  Tealie  v.  Hoyte,  3  Tenn.  Ch. 
head  v.  Jones,  56  Ala.  152.  651. 

2  Fogler  V.  Buck,  66  Me.  205.  ^  See  Hill  on  Trustees,  159,  536. 

3  2    Kent    Com.    230;    Docker    v. 
Somes,  2  M.  &  K.  6G4;  Kyle  v.  Bar- 

542 


CHAP.  IX.]    EIGHTS   AND    LIABILITIES   OF   THE    WARD.    §  386 

other  property  is  secure  in  his  purchase,  and  retains  all  the 
benefits  arising  therefrom,  unless  the  ward  chooses  to  set  it 
aside  and  claims  to  be  reinstated  in  his  own  possession.  This 
rule  is  laid  down,  however,  with  great  caution  in  the  courts ; 
and  it  is  frequently  said  that  the  transaction  is  treated  all  the 
same,  whether  the  guardian  bought  the  property  outright  or 
there  was  a  colorable  purchase  by  means  of  third  parties ; 
moreover,  that  such  sales,  in  order  to  stand  at  all,  must  have 
been  conducted  fairly  and  in  good  faith.^  Where  the  circum- 
stances show  fraud  and  collusion,  courts  of  equity  hesitate 
little  in  setting  the  transaction  aside.^  And  a  material  ques- 
tion for  consideration  in  such  sales  is  whether  a  fair  price  was 
paid  for  tlie  property.  Parties  affected  with  notice  of  the 
circumstances  cannot  complain  if  their  title  to  real  estate  be- 
comes thereby  impaired  ;  but  it  is  hard  that  purchasers  with- 
out notice  should  suffer.  On  this  latter  principle,  and  for 
the  security  of  title,  rests  a  recent  decision  in  Massachusetts, 
to  the  effect  that  the  guardian's  purchase  of  his  ward's  real 
estate  is  voidable  by  the  ward  only  as  against  the  guardian, 
or  a  purchaser  claiming  under  him  with  knowledge  of  the 
circumstances ;  and  not  as  against  a  subsequent  grantee  or 
mortgagee  without  notice.^  In  general,  if  with  the  ward's 
funds  the  guardian  purchases  land  and  takes  title  to  himself, 
a  subsequent  purchaser's  rights  should  depend  upon  good 
faith  and  the  question  whether  he  had  due  notice  of  the 
ward's  title.* 

If  the  ward  does  not  ratify  an  unauthorized  investment, 
neither  purity  of  intention  nor  diligence  and  good  faith  in 
endeavoring  to  prevent  loss  thereby  will  absolve  the  guardian 


1  2  Kent  Com.  230 ;  Scott  v.  Free-  Sim.  &  Stu.  567.  Here  that  constructive 
land,  7  S.  &  M.  409 ;  Doe  v.  Hassell,  68  notice  whicli  tlie  public  records  furnisli 
N.  C.  213  ;  Elrod  v.  Lancaster,  2  Head,  is  probably  to  be  deemed  unavailing  on 
571  ;  Patton  v.  Thompson,  2  Jones  Eq.  the  ward's  behalf. 

285;  Chorpenning's  Appeal,  82  Penn.  *  Title   running  to  the  guardian  as 

St.  315.     And  see  supra,  cs.  6,  7.  "trustee  "  should  put  such  third  party 

2  Hayward  v.  Ellis,  13  Pick.  272.  upon  guard.     Morrison  v.  Kinstra,  55 
^  Wyman  r.  Hooper,  2  Gray,  141.  Miss.  71.     And  see  Arniitage  v.  Snow- 
As  to  the  English  doctrine,  see  Morse  den,  41  Md.   119;  Bevis  r.  Heflin,  63 
r.  Poyal,  12  Ves.  372;  Gary  f.  Gary,  2  Md.   129;   White   v.  Izelin,  20   Minn. 
Sch.  &.  Lef.  17o  ;  Naylor  v.  Winch,  1  487 ;  Webster  v.  Bebinger,  70  Ind.  9. 

543 


§  387  THE   DOMESTIC   EELATIONS.  [PART   IV. 

from  liability  therefor.^  But,  in  general,  the  guardian  may 
discharge  himself  by  turning  over  what  securities  and  property 
he  has  taken  in  good  faith  and  in  the  rightful  exercise  of  his 
trust,  if  it  remains  as  the  result  of  prudent  management  of 
the  estate  on  his  part,  whether  valuable  or  worthless  at  the 
time  of  final  settlement ;  his  liability  extending  to  property 
of  the  ward  which  has  come  to  his  actual  or  potential  con- 
trol ;  and  securities  being  turned  over  at  their  just  valuation, 
like  specific  corporeal  chattels.^ 

For  a  guardian  to  take  notes  for  money  belonging  to  his 
ward,  payable  to  himself  in  his  own  name,  is  not  in  law 
a  conversion,  though  tending  perhaps  to  show  a  conversion.^ 
But  in  equity  the  ward  may  follow  not  only  money  belonging 
to  him  which  has  been  invested  in  land  by  his  guardian,  but 
any  specific  chattel  purchased  with  his  funds,  into  which  his 
funds  can  be  clearly  traced,  even  though  the  guardian  took 
title  to  himself.  If,  however,  the  ward  elects  to  take  the 
money,  such  property  vests  absolutely  in  the  guardian,  and 
those  standing  upon  the  guardian's  title.*  And  unless  the 
fund  can  be  traced  into  some  specific  thing  or  be  clearly 
identified,  the  ward,  of  course,  cannot  assert  his  right  there- 
in ;  ^  and  the  usual  rules  apply  as  to  bona  fide  third  parties 
who  may  have  meantime  acquired  title. 

§  387.  Transactions  between  Guardian  and  "Ward;  Undue 
Influence.  —  This  brings  us  to  the  general  subject  of  trans- 
actions between  the  guardian  and  ward,  from  which  the 
former  derives  a  benefit.  Here,  as  in  the  guardian's  pur- 
chases, equity  is  not  disposed  to  favor  him.  "  In  this  class 
of  cases,"  says  Judge  Story,  "  there  is  often  to  be  found  some 
intermixture  of  deceit,  imposition,  overreaching,  unconscion- 
able advantage,  or  other  mark  of  direct  and  positive  fraud."  ^ 


1  May  V.  Duke,  61  Ala.  53.  ^  Eichardson  v.  State,  55  Ind.  381. 

-  Supra,  c.G;  State  ^•.  Foy,  71  N.  C.  *  Clianslor   v.   Clianslor,    11    Bush, 

527;  Goodson  v.  Goodson,  6  Ired.  Eq.  6G3.    As  to  recovering  tlie  thing  from 

238.     Guardian  hehl  liable  for  careless-  tliird  parties  after  an  unproductive  suit 

ness  in  procuring  the  issue  of  an  erro-  on  tlie  guardian's  bond,  see  Branch  v. 

neous   decree    of   distribution    to    the  De  Bose,  55  Ga.  21. 
ward's  injury.     Pierce  v.  Prescott,  128         ^  Vason  r.  Bell,  53  Ga.  416. 
Mass.  140.  6  Story  Eq.  Juris.  §  307. 

544 


CHAP.  IX.]    RIGHTS   AND   LIABILITIES   OF  THE   WARD.    §  388 

Equity  will  relieve  against  such  transactions,  on  the  general 
principle  of  utility,  although  there  ma}^  not  have  been  actual 
imposition  ;  but  if  an  improper  advantage  has  been  taken, 
the  ground  for  relief  is  still  stronger.  And  it  is  noticeable 
that  a  more  stringent  rule  has  been  laid  down  as  to  guardians 
than  applies  to  transactions  between  parent  and  child ;  for  a 
guardian  is  not  supposed  to  be  influenced  by  that  affection 
for  his  ward  which  parents  entertain  towards  their  own  off- 
spring, and  therefore  has  no  such  powerfid  check  upon  his 
selfish  feelings.^ 

§  388.  Same  Subject ;  Situation  of  Parties  at  Final  Settlement 
of  Accounts.  —  Such  questions  generally  arise  at  and  about 
the  time  the  ward  attains  majority,  and.  pending  the  final 
settlement  of  the  guardian's  accounts.  The  English  rule  is 
very  strict,  and  courts  are  extremely  watchful  to  prevent  all 
undue  advantage  at  this  critical  period.  Therefore,  gifts  and 
conveyances  of  the  ward's  propertj^  in  consideration  of  the 
guardian's  services,  on  a  final  adjustment  may  be  set  aside 
afterward  in  equity,  even  after  the  ward's  death.  "  Where 
the  connection  is  not  dissolved,  the  accounts  not  settled, 
everything  remaining  pressing  upon  the  mind  of  the  party 
under  the  care  of  the  guardian,"  observes  Lord  Eldon,  "  it  is 
almost  impossible  that  the  transaction  should  stand."  ^  Nor 
are  the  circumstances  under  which  the  gift  was  made  con- 
sidered of  much  account ;  for  the  guardian's  superior  age  and 
knowledge  of  the  world,  and  the  fact  that  he  holds  the  prop- 
erty in  his  hands,  place  him  at  a  decided  advantage,  whether 
he  chooses  to  adopt  a  threatening  tone  or  to  impose  upon  the 
ward's  mind  by  excessive  kindness.  These  general  princi- 
ples apply,  though  not  always  in  the  same  degree,  to  all 
others  sustaining  fiduciary  relations  ;  including  receivers  and 
agents  who  manage  the  property  of  a  cestui  que  trust.  And 
unfair  advantages  of  every  sort,  which  the  guardian  aims  to 
secure  on  a  final  adjustment  of  his  accounts,  —  whether  it  be 
in  the  shape  of  compensation  or  the  waiver  of  indebtedness 

1  Pierce  v.  Waring,  cited  1  Ves.  Hatch  v.  Hatch,  9  Ves.  296.  See  Hill 
380 ;    Hylton  v.  Hylton,  2   Ves.   547  ;     on  Trustees,  157-100. 

•2  Hatch  V.  Hatch,  9  Ves.  29G. 

35  545 


§  388  THE   DOMESTIC   RELATIONS.  [PART  IV. 

incurred  by  his  misconduct,  —  follo-w  one  invariable  rule  : 
that  equity  will  relieve  the  ward  against  the  consequences  of 
his  one-sided  transaction.^ 

In  this  country  the  rule  is  somewhat  different ;  for  certain 
circumstances,  such  as  the  recognition  that  compensation  of 
some  sort  is  justly  due  a  trustee  for  his  services,  may  fairly 
contribute  to  relax  the  rule  in  the  guardian's  favor.  Settle- 
ments  and  bargains  between  the  guardian  and  ward  out  of 
court  are,  however,  frequently  set  aside  for  corrupt  influence. 
So  are  gifts  and  conveyances  in  consideration  of  the  guar- 
dian's services;  more  especially  when  undue  influence  is 
shown  from  special  circumstances.^  A  guardian  cannot  re- 
call his  own  gift  to  his  ward;  though  such  a  gift  might  lead 
the  court  to  regard  the  guardian's  account  for  expenditure 
with  favor  towards  him.^  In  Pennsylvania,  it  is  said  that 
settlements  will  not  stand  unless  full  deliberation  and  good 
faith  are  manifest ;  but  that  a  settlement  made  in  good  faith, 
especially  if  wise  and  prudent,  cannot  be  impeached,  after 
the  ward's  death,  by  his  representatives.'^  This  is  doubtless 
the  rule  elsewhere.  And  the  mere  fact  that  a  settlement  has 
been  made  between  guardian  and  ward,  with  allowances  in 
the  guardian's  favor,  is  not  conclusive  of  fraud,  though  every 
intendment  is  still  to  be  construed  on  the  ward's  behalf.^ 
Circumstances,  such  as  great  inadequacy  of  price  in  a  guar- 
dian's purchase  of  his  ward's  property  shortly  after  the  latter 
reaches  majority,  would  doubtless  sufl&ce,  if  not  rebutted  by 
ample  proof  of  fairness,  for  setting  aside  the  transaction  as 
fraudulent.^ 

1  Hylton   V.   Hylton,   2    Ves.   547 ;  Van  Antwerp,  4  Barb.  416  ;  Briers  v. 

Wood  V.  Downes,  18  Ves.  120;  Mul-  Hackney,  G   Ga.   419;  Fridge  w.  State, 

hallen   v.   Marum,   3   Dr.    &   \V.  317 ;  3    Gill   &  Johns.    103  ;   Richardson  v. 

Ayhvard  v.  Kearney,  2  Ball  &  B.  463  ;  Linney,  7  B.  Monr.  571. 
Hunter   v.   Atkins,   3    M.  &    K.    135;  3  Bond  v.  Lockwood,   33   111.   212; 

Macpliers.    Inf.    260-264;     Revett    v.  Pratt  y.  McJunkin,  4  Rich.  5. 
Harvey,  1  Sim.  &  Stu.  502;  Duke  of         4  Hawkins' Appeal,  32  Penn.  St.  263. 
Hamilton  v.  Lord  Mohun,  1  P.   Wms.  ^  Kirby   v.    Taylor,   6    Jolins.    Ch. 

118.     But  see  Cray  v.  Mansfield,  1  Ves.  242  ;  McClellan  v.  Kennedy,  8  Md.  230  ; 

Sen.  379,  where  gift  to  an  agent  was  Spalding   v.    Brent,    3   Md.    Ch.    411; 

supported.  Meek  v.  Perry,  36  Miss.  190 ;  Myer  v. 

•  ^  Hall  V.  Cone,  5  Day,  543  ;  Waller  Rives,  11  Ala.  760. 
I'.  Armistead,  2  Leigh,  11  ;  Sullivan   r.  ^  Eberts    v.    Eberts,   55   Penn.    St. 

Bluckwell,   28  Miss.    737;    Clowes   v.  110;  Suell  u.  Elam,  2  Heisk.  82. 

546 


CUAP.  IX.]    RIGHTS   AND   LIABILITIES   OF    THE   WARD.     §  388 


The  fact  that  settlements  out  of  court  are  not  generally  re- 
garded in  this  country  as  conclusive,  inasmuch  as  the  probate 
guardian  must  still  file  his  accounts  and  submit  his  transac- 
tions to  the  court,  is  a  great  safeguard  against  fraud,  A 
fixed  rule  is  established  for  the  final  adjustment  of  all  matters 
in  controversy  between  guardian  and  ward.^  The  chancery 
practice  is  to  allow  the  ward  a  reasonable  time,  after  attain- 
ing majority,  usually  one  year,  to  reopen  all  accounts 
between  himself  and  his  guardian.^  Hence  a  receipt  in 
full,  or  a  formal  release,  has  been  set  aside  as  inconclu- 
sive.2  And  where  the  ward  has  made  a  partial  inspection 
only,  without  examining  the  vouchers,  or  acted  without 
advice,  or  upon  imperfect  knowledge  of  the  facts,  so  much 
the  greater  is  his  equity  to  relief.*  But  in  probate  guardian- 
ship, settlements  out  of  court  usually  give  way  to  settlements 
in  court.^     And  if  the  ward  makes  no  objection  to  the  guar- 


1  In  some  States  the  probate  courts 
and  chancery  courts  have  concurrent 
jurisdiction,  and  the  ward  may  at  liis 
election  proceed  in  either  forum  to 
compel  a  settlement.  Hailey  v.  Bond, 
64  Ala.  399. 

'^  Matter  of  Van  Home,  7  Paige,  46. 

8  But  a  valid  release  absolving  from 
all  liability  to  account,  and  in  fact 
acquitting  the  guardian  of  liability  for 
unauthorized  acts,  is  in  some  cases 
recognized  ;  the  late  ward  having  thus 
acted  when  free  from  undue  influence 
and  as  one  clearly  srii  juris.  Satterfield 
V.  John,  53  Ala.  127  ;  Cheever  v.  Cong- 
don,  34  Mich.  296. 

*  Revett  V.  Harvey,  1  Sim.  &  Stu. 
502 ;  Wych  v.  Packington,  3  Bro.  P.  C. 
46;  Rapalje  v.  Norsworthy,  1  Sandf. 
Ch.  399;  Jolinson  v.  Johnson,  2  Hill 
Ch.  277 ;  Womack  v.  Austin,  1  S.  C. 
N.  s.  421. 

^  Although  the  guardian  has  settled 
with  his  ward  on  the  latter's  arrival  at 
full  age,  he  may  be  called  afterward 
to  file  and  settle  his  account.  Marr's 
Appeal,  78  Penn.  St.  66.  The  guar- 
dian must  deliver  to  the  proper  party 
entitled.  A  guardian's  deposit  of  funds 
•with  a  county  clerk,  who  afterwards 


defaults,  held  (such  officer  not  being 
officially  accountable  for  such  funds)  to 
render  the  guardian  and  his  bondsman 
accountable  and  not  the  defaulting 
clerk's  bondsman.  Scott  v.  State,  46 
Ind.  203;  State  v.  Fleming,  46  Ind. 
206.  And  this  even  thougli  the  court 
directed  the  guardian  upon  resigning 
to  deposit  thus.  lb.,  sed  qu.  Verbal  di- 
rections of  a  judge  of  probate  will  not 
protect  a  guardian.  Folger  v.  Heidel, 
60  Mo.  284.  A  guardian  having  mort- 
gaged as  additional  security  for  in- 
debtedness to  his  ward,  a  suit  to  fore- 
close is  no  bar  to  proceedings  for 
accounting  against  him  and  his  sure- 
ties. Lanier  v.  Griffin,  11  S.  C.  565. 
As  to  ex  joaz-fe  settlement  in  court,  see 
Gravett  v.  Maione,  64  Ala.  19.  A 
guardian's  so-called  account  is  incon- 
clusive as  sucli,  unless  submitted  to 
and  approved  by  the  court.  Beedle  v. 
State,  62  Ind.  26.  Judgment  for  money 
found  to  be  due  by  a  guardian  to  his 
ward  on  settlement  with  the  ordinary 
must  be  collected  by  process  of  execu- 
tion;  attachment  for  contempt  based 
on  the  failure  of  the  guardian  to  pay 
and  returu  of  nulla  bona  does  not  lie. 
Burrow   v.   Gilbert,   58  Ga.  70.     And 

647 


388 


THE  DOMESTIC  KELATIONS. 


[part   IV. 


dian's  final  account  as  presented,  or  records  his  approval,  and 
it  is  thereupon  judicially  approved  and  recorded,  and  appeal 
is  not  taken,  no  necessity  for  application  of  the  chancery 
rule,  of  reopening  the  account,  seems  to  exist,  except  upon 
very  strong  proof  of  fraud  or  error.^     If  the  ward  be  dead 


see,  as  to  indictment,  State  v.  Henry, 
1  Lea,  720.  Nor  has  the  ward  a  lien, 
equitable  or  otherwise,  upon  his  guar- 
dian's general  estate  to  secure  an 
honest  management.  Chanslor  v. 
Chanslor,  11  Bush,  663;  Vason  v. 
Bell,  53  Ga.  416.  As  to  accepting 
security  from  tlie  guardian  in  lieu  of 
the  security  of  his  bond,  see  Querin  v. 
Carlin,  30  La.  Ann.  1131. 

Final  settlement  with  infant  ward 
duly  represented  by  a  guardian  ad 
litem  is  as  binding,  as  a  rule,  as  a  sim- 
ilar one  made  with  an  adult.  Stabler 
V.  Cook,  57  Ala.  22.  But  no  final  set- 
tlement of  a  guardian's  accounts,  so  as 
to  operate  against  the  ward's  rights, 
can  be  made  by  the  court  while  the 
relation  of  guardian  continues.  Lewis 
V.  AUred,  57  Ala.  628. 

1  Kittredge  v.  Betton,  14  N.  H.  401 ; 
Musser  v.  Oliver,  21  Penn.  St.  362; 
Pierce  v.  Irish,  31  Me.  254  ;  Boynton 
V.  Dyer,  18  Pick.  1 ;  Hickman's  Appeal, 
7  Barr.  464  ;  Southall  v.  Clark,  3  Stew. 
&  Port.  338 ;  McDow  v.  Brown,  2  S.  C. 
N.  s.  95  ;  Bybee  v.  Tharp,  4  B.  Monr.  313. 
Yet  a  bill  in  chancerj'  for  correction, 
&c.,  may  be  maintained,  notwithstand- 
ing the  ward's  certificate  approving 
the  probate  account.  Monnin  v. 
Beroujon,  51  Ala.  106 ;  Bruce  v.  Doo- 
little,  81  111.  103  ;  Lindsay  v.  Lindsay, 
28  Ohio  St.  157.  Tliese  are  matters  of 
statute  regulation.  High  v.  Snedicor, 
57  Ala.  403.  Among  decisions  which 
apply  to  transactions  between  guardian 
and  ward  the  following  may  be  noticed. 
Where  a  guardian  advances  money  on 
his  ward's  account,  he  may  have  an 
assignment  of  the  security.  Kelcluier 
V.  Forney,  29  Penn.  St.  47.  In  extend- 
ing time  for  payment  of  a  security  the 
guardian  may  sometimes  arrange  fairly 
with  his   ward  for   special  compensa- 

548 


tion.  Bumham  v.  Dalling,  3  C.  E. 
Green,  132.  Tiie  guardian  who  does 
not  insist  on  surrendering  good  securi- 
ties, properly  taken,  as  the  estate  of 
his  ward,  but  pays  out  of  his  own 
funds  instead,  in  part,  may  become  to 
a  corresponding  extent  joint  owner  of 
the  securities.  Higgins  v.  McClure,  7 
Bush,  379.  But  the  guardian's  own 
note  or  bond  for  the  balance  of  money 
adjudged  due  on  a  final  settlement  is 
no  payment  to  the  ward,  nor  docs  it 
discharge  the  guardian's  sureties.  It  is 
a  mere  postponement  of  final  payment, 
and  afibrds  evidence  of  an  admitted 
liability  on  his  part.  Wardlaw  v.  Gray, 
2  Hill  Ch.  644;  Hamlin  v.  Atkinson,  6 
Rand.  574.     See  also  Douglas  v.  State, 

44  Ind.  67.     See  Coleman  v.  Davies, 

45  Ga.  489.  The  guardian  cannot  buy 
up  an  equitable  encumbrance,  and 
enforce  it  against  the  ward  who  is 
ready  to  refund.  Taylor  v.  Taylor,  6 
B.  Monr.  559.  The  ward  may  release 
to  one  of  joint  guardians,  and  tlius 
hold  the  sureties,  Kirby  i\  Taylor,  6 
Johns.  Ch.  242;  though  this  principle 
may  be  affected  by  general  rules  as  to 
probate  bonds.  A  receipt  in  full  dis- 
charges only  for  the  amount  actually 
received  by  the  wards,  may  be  contra- 
dicted by  parol,  and  binds  only  such 
wards  as  were  authorized  to  give  it ; 
and  its  validity  and  effect,  though 
under  seal,  may  be  considered  in  court. 
Witman's  Appeal,  28  Penn.  St.  376; 
Beedle  v.  State,  62  Ind.  26  ;  Barnes  v. 
Compton,  8  Gill,  391 ;  Felton  v.  Long, 
8  Ired.  Eq.  224;  Magruder  v.  Good- 
wyn,  2  P.  &  H.  561 ;  Stark  v.  Gamble, 
43  N.  H.  465;  Wade  v.  Lobdell,  4 
Cush.  510.  Cf  n.  3,  supra,  p.  .543 ;  4  Rcdf. 
Surr.  310.  The  settlement  of  an  in- 
solvent guardian  with  his  ward  is 
sometimes    protected    by  a    court    of 


CHAP.  IX.]    EIGHTS    AND   LIABILITIES   OF    THE   WARD.     §  389 

the  guardian's  settlement  must  be  with  the  ward's  executor 
or  administrator ;  but  even  thus  a  probate  guardian's  settle- 
ment is  usually  subject  to  the  court's  revision  upon  his 
accounts.^  In  short,  the  proper  place  to  seek  for  an  account- 
ing according  to  American  practice,  is  the  probate  court ; 
and  the  theory  is  that  every  guardian  shall  settle  with  the 
judge,  or  with  a  successor,  or  with  the  ward  at  full  age ;  or 
with  the  ward's  legal  representatives,  as  the  case  may  be, 
and  upon  final  settlement  pay  over  and  deliver  all  the 
ward's  property  and  balances  which  may  thus  be  found  due, 
otherwise  action  may  be  had  upon  his  bond  as  for  breach  of 
condition  thereof.^  Accord  and  satisfaction  with  the  adult 
husband  of  a  married  minor  ward,  which  upon  the  theory  of 
the  old  common  law  might  have  been  admissible,  is  not  to  be 
favored  in  these  days  when  a  wife's  separate  property  is  so 
zealously  protected.^ 

§  389,  Transactions  after  Guardianship  is  ended.  —  Transac- 
tions after  the  period  of  guardianship,  between  parties  lately 
holding  the  relation  of  guardian  and  ward,  especially  if  the 
ward  still  remains  under  the  influence  of  a  former  guardian, 
may  be  set  aside  upon  the  same  principle  of  constructive 
fraud.  It  is  true  that  bargains  between  them  are  good 
whenever  the  influence  is  fully  removed  ;  even  to  gifts  and 
conveyances  in  consideration  of  past  services,  the  accounts 
having  been  finally  closed,  the  property  duly  transferred,  and 
the  late  parties  to  the  fiduciary  relation  standing  toward  one 
another  as  man  and  man.  Under  these  circumstances,  the 
late  guardian  may  purchase  propert^^  of  his  late  ward.*  But 
such  transactions  are  always  to  be  regarded  with  suspicion. 


equity   as   against  the   guardian's   as-  he  may  settle  with  his  ward  after  the 

signee  in  insolvency.     Moore  v.  Hazel-  ward  has    recovered    his   reason,   and 

ton,  9  Allen,  102.     Statutes  are  found  need  not   submit  liis   account  to   tlie 

which  permit  the  ward  at  full  age  to  probate  court.     Hooper  v.  Hooper,  20 

waive  his  legal  right  to  an  account  and  Mich.  435. 

join  his  guardian  in  asking  the  court         3  Married  wards    stand   essentially 

for  a    discharge.     Marr's   Appeal,   78  upon  the   same  footing  as   others,   as 

Penn.  St.  66.  to  having  accounts  settled  in  probate 

1  Ordway  y.  Phelps,  45  Iowa,  279.  court.  Wing  !>.  Rowe,  69  Me.  282  ;  Mon- 

2  But  as  to  the  guardian  of  a  person  nin  v.  Beroujon,  51  Ala.  196. 
formerly  insane,  some  States  hold  that         *  Oldin  v.  Samliorn,  2  Atk.  15! 

549 


§  389  THE   DOMESTIC   RELATIONS.  [PART  lY. 

And  where  the  influence  still  continues,  as  if  the  ward  be  a 
female,  or  a  person  of  weak  understanding,  and  the  guardian 
continues  to  control  the  property  or  to  furnish  a  home,  the 
court  is  strongly  disposed  to  set  aside  the  bargain  altogether.^ 
Thus  where  a  guardian  procures  the  late  ward's  indorsement 
of  his  own  notes  without  consideration,  the  parties  who  take 
such  notes  with  knowledge  of  the  fiduciary  relationship  have 
been  enjoined  from  enforcing  them  against  the  indorser.^ 
And  if  the  guardian  purchase  rights  of  the  late  ward  in  his 
father's  property  for  a  grossly  inadequate  consideration,  it 
will  be  set  aside.^  The  circumstance  that  the  guardian  had 
better  opportunities  of  acquaintance  with  the  actual  condition 
and  value  of  the  property  than  the  ward  himself  is  properly 
to  be  considered  on  the  latter's  behalf.  Purchases  of  the 
guardian's  property  by  the  late  ward  are  to  be  closely  scru- 
tinized in  like  manner."* 

This  principle  applies  to  quasi  guardians,  even  to  parents. 
Not  many  years  since,  a  young  lady,  who  had  been  living  for 
thirteen  years  with  her  mother  and  stepfather,  joined  the 
latter  within  twelve  months  after  she  became  of  age,  at  his 
request  and  under  his  influence,  in  a  promissory  note  for 
which  she  received  no  consideration.  The  payee  some  years 
later  obtained  judgment  at  common  law,  and  was  about  to 
take  out  execution,  when  the  Court  of  Chancery  interfered 
on  motion,  restrained  the  payee  from  enforcing  his  execution, 
and  ordered  the  money  paid  into  court.^ 

But  the  ward  may  be  barred  by  the  lapse  of  time  alone,  or 
taken  in  connection  with  his  own  acts,  from  disafiirming  in 
law  or  equity  his  own  transactions  or  his  guardian's  unauthor- 

^  See  Macphers.  Inf.  260  ;  Huguenin  But  as  to  carrying  out,  on  arriving  at 

i;.  Baseley,  14  Vcs.  '273;  Dent  i-.  Ben-  age,  a  reasonable  family  arrangement, 

nett,  4  M.  &  C.  269  ;  Mellish  v.  Mellish,  see  Cowan's  Appeal,  74  Penn.  St.  329 ; 

1  Sim.  &  Stu.  138  ;  Dawson  v.  Massey,  Re  Wood,  71  Mo.  623.     Such  transac- 

1  Ball  &  B.  219 ;  Harris  v.  Carstarphen,  tions    may    be   set   aside   against   one 

69  N.  C.  416;  Garvin  v.  Williams,  50  recent  fiduciary  and  upheld  as  to  an- 

Mo.  206.  other,  as  the  equity  of  the  case  may 

2  Gale  V.  Wells,  12  Barb.  84.  warrant.     Berkmeyer  v.  Kellerman,  32 

3  Wright  V.  Arnold,    14   B.   Monr.  Ohio  St.  239. 

638;   Williams  v.  Powell,  1   Irud.  Eq.  &  Espey  i'.  Luke,  15  E.  L.  &Eq.  579. 

460;.Wickiser  y.  Cook,  85  111.  68.  And    see  Maitland   v.  Backhouse,   16 

*  Sherry  v.  Sansberry,  3  lad.  320.     Sim.  58. 

550 


CHAP.  IX.]    EIGHTS   AND    LIABILITIES   OF   THE   WAKD.    §  390 

ized  acts  ;  though  to  be  barred  by  his  own  acts  in  all  such 
transactions,  it  should  appear  that  he  acted  after  termination 
of  his  disability,  with  deliberation  and  on  full  knowledge  of 
the  essential  facts. ^  Thus  where  a  guardian  has  exceeded  his 
ward's  income  in  purchasing  for  him  a  horse  and  buggy, 
there  will  be  a  ratification  presumed  from  circumstances 
showing  that  the  ward  used  them  after  majority  and  received 
the  proceeds  of  their  sale.^  And  the  composition  of  a  debt 
on  fair  terms,  made  between  an  insolvent  guardian  and  his 
ward  about  eight  years  after  the  latter  became  of  age,  Avill 
not  readily  be  set  aside  for  the  purpose  of  enabling  the  ward 
at  so  late  a  day  to  reach  the  sureties  on  the  guardian's  bond.^ 
Where  the  late  ward  sets  aside  the  transaction  for  undue 
influence  he  ought  to  refund  the  money,  if  any,  which  he 
received  by  way  of  consideration.^ 

§  390.  Marriage  of  Ward  against  Consent  of  Chancery  or  Guar- 
dian.—  It  is  the  rule  of  the  English  courts  of  chancery  that 
no  one  can  marry  a  ward  of  the  court  without  its  express 
sanction.  And  wherever  a  guardian  is  appointed  he  must 
give  a  recognizance  that  the  infant  shall  not  marry  without 
its  leave.^  If  a  man  marry  a  female  ward  without  the  appro- 
bation of  the  court,  he,  and  all  others  concerned,  will  be 
treated  as  guilty  of  a  contempt  of  court,  and  punished  accord- 
ingly. So  where  there  is  reason  to  suspect  an  improj^er  mar- 
riage of  its  wards,  the  court  will  interfere,  by  injunction,  to 
prevent  the  marriage,  to  forbid  all  intercourse  between  the 
lovers,  and  even  to  take  the  ward  from  the  custody  of  the 
guardian  or  any  other  person  who  is  supposed  guilty  of  con- 
nivance with  the  match.     When  an  offer  of  marriage  is  made, 

1  Fish   V.  Miller,  1   HofF.   Ch.  267  ;  2  Caffey  v.  McMicliael,  64  N.  C.  507. 

Binion  v.  Miller,  27  Ga.   78 ;   Scott  v.  As  to  lapse  of  time  as  a  barriei*,  see 

Freelaiid,   7   S.   &  M.  409 ;    Hume  v.  supi-a,  §  382. 

Hume,  3  Barr,  144 ;  Worrell's  Appeal,  3  Motley  v.  Motley,  45  Ala.  555. 

23  Penn.  St.  44  ;  Sherry  v.  Sansberry,  *  Wickiser  v.  Cook,  85  111.  U8. 

3Ind.  320;  Penn.  y.  Heisey,19III.295;  s  gtory    Eq.   Juris.  §§    1358-1361; 

Trader  v.  Lowe,  45  Md.  1 ;  Ferguson  v.  .Macphers.  Inf.  191-209;  Eyre  v.  Count- 

Lovvery,  54  Ala.  510  ;  Singleton  V.Love,  ess   of  Shaftesbury,  2   P.    Wms.  Ill; 

1  Head,  357  ;  Macpliers.  Inf.  538-543  ;  Smith  v.  Smith,  3  Atk.  305;  Stackpole 

Lee   i\  Brown,   4  Ves.   361;  Cory   v.  v.  Beaumont,  3   Ves.   98;   Stevens  v. 

Gertcken,  2  Madd.  40  ;  AUfrey  v.  All-  Savage,  1  Ves.  Jr.  154- 
frey,  11  Jur.  981. 

551 


§  390  THE   DOMESTIC   RELATIONS.  [PART   IV. 

the  court  refers  it  to  a  master  to  ascertain  and  report  whether 
the  match  is  suitable,  and  also  what  settlement  should  be 
made  upon  the  ward.  Where  a  marriage  has  been  celebrated 
without  leave,  the  court  will  interfere  to  protect  the  female 
ward  against  the  consequences  of  her  indiscretion,  and  will 
compel  the  husband  to  make  a  suitable  settlement  upon  her. 
This  whole  subject  is  peculiar  to  the  laws  of  England,  and 
has  no  application  whatever  to  courts  of  chancery  in  this 
country ;  unless  it  be  that  orders  might  issue  in  some  cases  of 
improvident  marriage  to  compel  the  settlement  of  a  suitable 
portion  upon  the  female  ward.  Yet  authority  is  wanting  for 
the  exercise  of  chancery  jurisdiction  even  to  this  extent:  so 
repugnant  does  it  appear  to  the  whole  tenor  of  our  legislation. 
But  where  property  of  a  female  ward  is  under  the  control  of 
a  court  of  equity,  and  the  husband  needs  its  assistance,  a 
suitable  provision  might  be  compelled  on  her  behalf  ;  for  this 
would  be  in  accordance  with  the  general  law  of  husband  and 
"wife.^ 

1  Kenny  i'.  Uclall,  5  Johns.  Ch.  464,  bill  in  equity  for  procuring  the  settle- 

473 ;  s.  c.  3  Cow.  591 ;  Van  Epps  v.  Van  ment  of  the  ward's   moderate  fortune 

Deusen,  4  Paige,  Gl;    Van   Deusen  v.  upon  her,  against  her  husband's  wishes. 

Van  Deusen,  6  Paige,  366.     See   also  Murphy  v.  Green,  58  Tenn.  403.  Trusts 

liedfield's  ?i.  to  Story  Eq.  Juris.  §  1361  ;  for  children  are  sometimes  made  with  a 

Chambers  ik  Perry,  17  Ala.  72G.     The  proviso  as  to  the  child's  marrying  with 

guardian  of  a   ward  who  has    impru-  the  approbation  of  the  trustee  or  testa- 

dently  married  witliout  his  assent  has  mentary   guardian.     See  Tweedale  v. 

been  permitted,  in  tliis  court,  to  bring  a  Tweedale,  7  Ch.  D.  633. 

552 


PART  y. 

INFANCY. 


CHAPTER  I. 

THE   GENERAL   DISABILITIES   OF   INFANTS. 

§  391.  Age  of  Majority.  —  All  persons  are  infants,  in  legal 
contemplation,  until  they  have  arrived  at  majority.  The  pe- 
riod of  majority  differs  in  different  States  and  countries ;  but 
this  general  principle  remains  the  same. 

By  the  civil  law,  full  majority  was  not  attained  until  the 
person  had  completed  his  twenty-fourth  year ;  he  was  then 
said  to  be  perfectoe  cetatis  —  cetatis  legitimce.'^  This  period  was 
likewise  adopted  in  France  (though  it  was  afterwards 
changed),  and  it  prevails  still  in  Spain,  Holland,  and  some 
parts  of  Germany .2  By  the  French  civil  code,  the  age  of  full 
capacity  is  twenty-one  years,  except  that  twenty-five  years  is 
the  majority  for  contracting  marriage  without  paternal  con- 
sent, by  the  male,  and  twenty-one  by  the  female.^  The  law 
of  Scotland  adopts  the  age  of  twenty-one.*  Among  the 
Greeks  and  early  Romans,  women  were  never  of  age,  but 
subject  to  perpetual  guardianship,  except  as  wives ;  this 
gradually  changed,  and  the  civil  law,  as  it  stood  in  the  time 
of  Justinian,  permitted  females  as  well  as  males  to  attain 
their  majority  at  twenty-five.^ 

1  1  Burge  Col.  &  For.  Laws,  113.  *  Ersk.  Inst.  b.  1,  tit.  vii. ;  1  Bl.  Com. 

2  Ih.  114.  464. 

8  Code  Civil,  §§  145,  488 ;   2  Kent         5  inst.  1,  23,  1 ;  1  Bl.  Com.  464. 
Com.  233. 

653 


§  392  THE   DOMESTIC   RELATIONS.  [PART   V. 

The  common  law  of  England,  from  the  remotest  times,  has 
fixed  twenty-one  as  the  period  of  absolute  majority  for  both 
sexes ;  or,  to  be  more  exact,  an  infant  attains  full  age  on  the 
beginning  of  the  day  next  preceding  the  twenty-first  anni- 
versary of  his  birth. 1  The  same  rule  is  applied  in  most  parts 
of  the  United  States,  though,  in  some  of  the  States,  females 
have  an  enlarged  capacity  to  act  at  eighteen.^  Under  the 
statutes  of  Vermont,  Ohio,  and  Illinois,  and  some  other  West- 
ern States,  females  are  deemed  of  age  at  eighteen.^  The  Code 
of  Louisiana  follows  common-law,  not  civil-law,  principles, 
and  adopts  twenty-one  as  the  limitation  for  both  sexes.''  Thus 
arbitrary  is  the  law  which  fixes  the  period  of  majority  ;  nature 
assigning  no  precise  and  uniform  period  at  which  the  disa- 
bility of  infancy  shall  cease,  yet  clearly  indicating  that  there 
must  be  some  such  period. 

A  man  born  the  first  day  of  February,  1600,  after  eleven 
o'clock  at  night,  was  adjudged  in  England  to  be  of  full  age 
after  one  o'clock  on  the  morning  of  the  last  day  of  January, 
1621.^  This  is  because  the  common  law  makes  no  allowance 
for  fractions  of  a  day.  But  the  civil  law,  in  order  to  secure 
to  the  person  the  full  protection  afforded  on  account  of  his 
minorit}'-,  did  not  hold  the  commencement  of  the  day  to  be  its 
completion,  if  injurious  to  his  interests.^  In  some  instances, 
the  civil  law  permitted  the  State  or  sovereign  to  grant  venia 
cetatis  to  full-grown  persons  Avho  stood  in  need  of  it,  and  thus 
to  place  them  constructively  on  the  footing  of  infants;  but 
nothing  of  the  sort  is  recognized  at  common  law.'^ 

§  392.  Growing  Capacity  during  Non-age ;  Legislative  Relief 
from  Non-age.  —  The  principle  of   an  enlarging  capacity  in 

1  2  Kent  Com.  233;  1  Bl.  Com.  463;  was  the  long-settled  rule  likewise  in 
1  Salk.  44;  Ld.  liaym.  480,  1006;  3  Texas.  Means  i'.  Kobinson,  7  Tex.  502. 
Wils.  274;  Hamlin  v.  Stevenson,  4  5  jrjtzluiey.  Bennington,  G  Mod.  259  ; 
Dana,  597  ;  State  v.  Clarke,  3  Harring.  1  Salk.  44,  and  citations  in  last  section. 
557 ;  Wells  v.  Wells,  6  Ind.  447."  And  see  1  Jarm.  Wills,  Eng.  ed.  1861, 

2  2  Kent  Com.  2-33.  See  Crapster  v.  39;  Met.  Contr.  38.  Judge  Redfield 
GriflBtli,  2  Bland  Cii.  5.  dissents  from  this  rule.      See  1  lledf. 

3  Sparhawk  r.  Buel,  9  Vt.  41 ;  Ste-  Wills.  18-20. 

phenson  v.  Westfall,  18  111.  209.  6  j.  Voet,  lib.  4,  tit.  4,  n.  1. 

4  Louisiana  Code,  arts.  41,  93.    This         7  See  1  Burge  Col.  &  For.  Laws,  116, 


117. 


654 


CHAP.  I.]     THE  GENERAL  DISABILITIES   OF   INFANTS.      §  393 

infants  has  been  incidentally  noticed.  It  is  reasonable  to 
suppose  that  they  who  are  constantly  growing  become  natu- 
rally competent  for  certain  purposes  long  before  they  attain 
complete  majority,  and  j'oung  men  and  women  may  well  be 
allowed  the  exercise  of  more  discretion  than  babes.  Hence, 
we  find  that  infants  of  suitable  age  are  allowed  to  contract  a 
valid  marriage  ;  that  males  of  the  age  of  fourteen  and  up- 
wards, and  females  at  the  age  of  twelve,  could  once  dispose 
of  personal  estate  by  will,  and  at  fourteen  may  still  choose  or 
nominate  their  own  guardians ;  that  children  of  discretion 
have  a  voice  in  determining  the  right  of  custody  and  control. 
But  not  until  attaining  majority  could  a  person  at  the  com- 
mon law  convey,  lease,  or  make  contracts  in  general  which 
would  bind  him  ;  and  the  foregoing  must  then  be  considered 
as  among  the  exceptions  to  the  rule  that  persons  are  legally 
incapable  so  long  as  they  are  minors.^ 

Legislative  emancipation  has  existed  in  Louisiana.  In  the 
case  of  an  emancipated  minor  under  such  statutes,  by  which 
he  is  relieved  from  the  time  prescribed  by  law  for  attaining 
the  age  of  majorit}^  he  is  invested  with  all  the  capacities  in 
relation  to  his  property  and  obligations  which  he  would  have 
had  he  actually  arrived  at  the  age  of  twenty-one  years.  And 
he  may  be  appointed  administrator  of  an  estate  ^  or  surety  on 
a  bond.^  But  the  right  of  legislative  emancipation  seems 
never  to  have  been  distinctly  admitted  at  the  common  law  in 
any  such  sense. 

§  393.  Conflict  of  Laws  as  to  True  Date  of  Majority.  —  Sup- 
posing a  conflict  of  laws  should  arise  over  the  contract  of  an 
infant  by  reason  of  the  period  of  majority  being  differently 
assigned  by  the  law  of  the  domicile  of  his  origin  and  that  of 
his  actual  domicile,  or  of  the  situation  of  real  property,  or  of 
the  place  where  he  has  entered  into  a  contract.  The  rules 
for  such  cases  are  these:  First,  that  the  actual  domicile  will 
be  preferred  to  the  domicile  of  birth.     Second,  that  the  law 

1  Co.  Litt.  78  h,  89  h,  and  Harg.  note.  168.  See  also  State  v.  Bunce,  65  Mo. 
As  to  the  privilege  of  wills,  see  Stat.  1  349.  As  to  emancipation  of  a  minor 
Vict.  c.  26,  §  7 ;  infra,  §  397.  in  our  usual  sense,  see  supra,  §  267. 

2  Succession  of  Lyne,  12  La.  Ann.  *  Cooper  v.  Rhodes,  30  La.  Ann.  533. 
155;  Gordon  v.  Gilfoil,  99  U.  S.  Supr. 

555 


§  394  THE  DOMESTIC   RELATIONS.  [PART  V. 

of  situation  of  real  property  must  prevail  over  that  of  domi- 
cile. Thirds  that  the  law  of  the  place  where  a  contract  is 
made  must  prevail  over  that  of  domicile.^ 

The  right  of  action  for  the  recovery  of  real  estate  belonging 
to  an  infant  will  be  governed,  not  by  the  law  in  force  when 
the  right  of  action  accrued,  but  by  the  law  in  force  when  the 
infant  became  of  age.^ 

§  394.  Infant's  Right  of  Holding  Office  and  Performing  Official 
Functions. —  Next,  as  to  the  infant's  right  of  holding  office. 
There  are  numerous  old  cases  to  be  found  in  the  books  where 
an  infant  has  been  adjudged  capable  of  holding  offices  that 
involve  no  pecuniary  or  public  trust,  and  require  only  moder- 
ate skill  and  diligence  ;  such  as  the  office  of  park-keeper, 
forester,  sheriff,  and  jailer ;  though  on  the  ground  apparently 
that  such  offices  formerly  were  capable  of  grant,  and  the 
grantees  had  the  power  to  act  by  deputy.^  But  the  modern 
doctrine  seems  to  be  clear  that  no  office  of  pecuniary  and 
public  responsibility  can  be  conferred  upon  an  infant ;  not  so 
much  because  of  mental  incapacity  on  his  part,  as  for  the 
very  good  reason  that  a  person  who  is  not  legally  responsible 
for  the  duties  of  his  office  cannot  be,  in  point  of  law,  a  proper 
person  to  execute  them.  A  public  office  which  requires  the 
personal  receipt  and  disbursement  of  money  is  not  then  to  be 
filled  by  an  infant.*  Nor  can  an  infant  act  as  administrator, 
executor,  or  trustee,  nor  by  his  concurrence  (in  the  absence  of 
fraud  on  his  part)  sanction  a  breach  of  trust.^     He  cannot  be  a 

1  Male  V.  Roberts,  3   Esp.  163;    1         2  Qilker  v.  Brown,  47  Mo.  105. 
Burge  Col.  &  For.  Laws,  118  et  seq.;  3  Bac.  Abr.  Infancy  and  Age  (E); 

Story    Confl.    Laws,    §§    75,   82,    332;  3   Mod.    222;   Young  v.   Fowler,  Cro. 

Thompson  r.  Ketcham,  8  Johns.  189  ;  Car.  655 ;  Macphers.  Inf.  448. 
Hierstand  y.  Kuns,8  Biackf.  345;  Saul  *  Clarldge  v.  Evelyn,   5  B.  &  Aid. 

V.   His   Creditors,  17   Martin,   597;    2  81.     See  Crosbie  u.  Hurley,  1  Alcock& 

Kent  Com.  233,  n. ;  Huey's  Appeal,  1  Napier,  431. 

Grant    (Penn.),   51;    Wharton   Confl.         &  Macphers.  Inf.  449 ;  Wilkinson  w. 

§  112.     An  order  of  court  of  another  Parry,    4     Russ.     372.     But     though 

State,  made  in  conformity  to  a  statute  wrongly  appointed,  he  will  be  liable  to 

of  that  State,  and  purporting  to  relieve  account  for   money   received   by  him 

an  infant  residing  in  that  State  from  after    reaching    majority.     Carow    v. 

the  disability  of  ron-age,  can  have  no  Mowatt,  2  Edw.  Ch.  57. 
operntion  in  Missouri.     State  v.  Bunce, 
65  Mo.  349. 

656 


CHAP.  I.]     THE   GENERAL   DISABILITIES    OF    INFANTS.       §  394 

guardian,  an  attorney  under  a  power  (except  to  receive  seisin), 
a  bailiff,  a  factor,  or  a  receiver.^ 

The  service  of  a  notice  of  replevy  by  an  infant  is,  in  Eng- 
land, illegal  and  void  ;  and  it  would  appear  that  he  cannot  be 
sheriff's  officer.^  But  in  New  Hampshire  it  is  held  that  an 
infant  may  be  deputed  to  serve  and  return  a  particular  writ ; 
on  the  ground  that  while  offices  where  judgment,  discretion, 
and  experience  are  essentially  necessary  to  the  proper  dis- 
charge of  the  duties  they  impose,  are  not  to  be  entrusted  to 
infants,  offices  may  be  held  which  are  merely  ministerial,  and 
require  nothing  more  than  skill  and  diligence.^  But  a  dis- 
tinction is  properly  taken  between  the  case  of  officers  of  jus- 
tice ordinarily  liable  for  false  return,  misfeasance,  and  the 
like,  and  those  who  have  no  such  liability ;  and  for  this 
reason,  while,  in  Vermont,  an  infant  may  serve  a  particular 
writ,  he  cannot  be  specially  authorized  to  serve  mesne  process 
by  the  magistrate."^ 

In  ancient  times  minors  appear  to  have  frequently  sat  in 
the  British  Parliament.  Thus  it  is  related  that  a  son  of  the 
Duke  of  Albemarle  took  part  in  debate  when  only  of  the  age 
of  fourteen  ;  and  history  states  that  about  the  10th  James  I. 
there  were  forty  members  not  above  twenty  years  of  age,  and 
some  not  above  sixteen.^  But  by  statute  it  is  now  provided 
that  an  infant  cannot  sit  in  the  House  of  Lords,  or  vote  at  an 
election  for  a  member  of  the  lower  house,  or  be  elected.^ 
There  are  provisions  in  the  Constitution  of  the  United  States 
and  of  the  different  States,  adopted  undoubtedly  because  it 
was  considered  contrary  to  sound  public  policy  to  commit 
any  ofiices  requiring  considerable  skill  and  prudence,  not  to 
say  pecuniary  and  public  responsibility,  to  the  young  and 
immature.  By  the  Constitution  of  the  United  States,  no 
person  can  be  President  who  has  not  attained  the  age  of 
thirty-five  years  ;    nor  a   senator,  who  is  under  the  age  of 

1  Macphers.  Inf.  448,  449  ;  Co.  Litt.  «  Barrett  v.  Seward,  22  Vt.  176  ; 
3  b,  172.  Harvey  t'.  Hall,  ib.  211. 

2  Cuckson  V.  Winter,  2  M.  &  Ry.  &  See  Macphers.  Inf.  449,  n. ;  1 
306.  Pari.  Deb.  "120,  notes. 

3  Moore  v.   Graves,    3  N.   H.   408.  ^  1  &8  Will.  III.  c.  25. 
But  see  Tyler  v.  Tyler,  2  Root,  519. 

557 


§  395  THE   DOMESTIC   EELATIONS.  [PART   V. 

thirty  years ;  nor  a  representative  in  Congress  who  is  not 
twenty-live  years  of  age.  Corresponding  laws  abound  in  the 
different  States  as  to  the  eligibility  of  local  officers.  So  is 
the  disqualification  to  vote  universally  applied  by  our  laws  to 
minors,  and  restrictions  upon  the  right  of  suffrage  may  extend 
even  further.^ 

The  true  principle  to  be  extracted  from  the  authorities 
seems  therefore  to  be  that  the  court  will  inquire  whether  an 
infant,  as  such,  is  by  law  capable  of  discharging  suitably,  faith- 
fully, and  efficiently  the  duties  of  a  particular  office,  and  so  as 
to  leave  open  all  the  usual  remedies  to  others ;  and  this  is  a 
proper  rule  of  guidance,  the  statutes  being  silent,  rather  than 
ancient  precedents  laid  down  as  to  particular  offices  in  times 
when  they  were  transmissible  in  families  and  mere  sine- 
cures.2 

There  are,  undoubtedly,  certain  offices  which  an  infant 
may  properly  hold.  And  the  legislature  is  competent  to 
establish  an  earlier  or  later  period  at  which  persons  shall  be 
deemed  of  full  age  for  certain  purposes.  Hence  in  Massa- 
chusetts, under  a  law  fixing  eighteen  years  as  the  age  for 
military  duty,  and  empowering  an  infant  at  that  age  to  enlist 
of  his  own  accord,  and  without  the  parent's  assent,  in  the 
militia,  it  is  held  that  he  may  be  elected  company  clerk,  or 
even,  as  it  would  appear,  a  commissioned  officer  of  the  com- 
pany.3 

§  395.  Infant's  Responsibility  for  Crime.  —  Infants  who  have 
arrived  at  sufficient  maturity  in  years  and  understanding  are 
capable  of  committing  crimes ;  and  it  is  said  that  they  cannot 
plead  in  justification  the  restraint  of  a  parent,  as  married 
women  can  that  of  the  husband  ;  although,  as  we  presume, 
duress  or  compulsion  might  properly  be  set  up  in  defence, 
wherever  a  young  child  is  indicted  and  tried  for  a  crime. 
The  period  of  life  at  which  a  capacity  of  crime  exists  is  deter- 

1  The  ofHcer  who  usually  .arlminis-  not  lioUl,  see  Bac.  Abr.  Infancy  and 
ters  the  oath  of  office  cannot  refuse  to  Age  (E) ;  also  Moore  v.  Graves,  3  N.  H. 
do    so    on    such    grounds.    People   v.    408,  passim. 

Dean,  3  Wend.  438.  3  Dewey,  Petitioner,   11  Pick.  265. 

2  For  some  of  the  old  decisions  as  to  See  Hands  v.  Slancy,8  T.  E.  578.  In- 
what  offices  an  infant  miglit  or  might    fant  may  be  a  notary,  25  Alb.  L.  J.  12. 

658 


CHAP.  I.]     THE   GENERAL   DISABILITIES    OF   INFANTS.      §  395 

mined  by  law  to  a  certain  extent ;  for  a  child  under  seven  is 
conclusively  incapable  of  crime,  one  between  seven  and  four- 
teen only  prima  facie  so,  and  one  over  fourteen  lorima  facie 
capable  like  any  other. ^  An  exception  to  this  rule  is  usually 
stated  in  certain  cases  of  physical  impotence  ;  for  it  is  argued 
that  a  boy  under  fourteen  years  of  age  is  physically  unde- 
veloped, and  therefore  cannot  be  legally  guilty  of  rape  or 
similar  crimes.-  Incapacity  for  committing  a  crime  might 
properly  be  considered  in  connection  with  incapacity  of  crim- 
inal intent ;  and  yet  the  later  rule  of  Ohio  and  some  other 
States  seems  the  more  correct  one,  which  is  to  reject  in  such 
case  any  doctrine  of  conclusive  presumption  of  incapacity, 
and  allow  evidence  of  criminal  intent  to  be  furnished.^  But 
investigations  on  this  point  might  be  held  contra  honos  mores. 
The  general  rule  is  that  capacity  for  crimes  in  persons  above 
the  age  of  seven  years  is  a  question  of  fact ;  the  law  assuming 
prima  facie  incapacity  under  fourteen,  and  capacity  over 
fourteen ;  but  subjecting  that  assumption  to  the  effect  of 
proof  as  to  the  real  fact.* 

Where  a  statute  creates  an  offence,  infants  under  the  age 
of  legal  capacity  are  not  presumed  to  have  been  included  ; 
yet  where  an  act  is  denounced  as  a  crime,  even  felony  or 
treason,  it  extends  as  well  to  infants  if  above  fourteen  years, 
as  to  others.^ 

An  infant  may  be  indicted  for  obtaining  goods  by  false 
pretences.^  He  is  liable  to  bastardy  process.''  And,  follow- 
ing the  general  principle  already  announced,  children  less 
than  fourteen  have  been  convicted  for  arson  and  murder,  the 


1  1  Bish.  Crim.  Law,  §  460 ;  1  Rtiss.  Harring.  566  ;  Reg.  v.  Phillips,  8  Car.  & 
Crimes,  Grea.  ed.  2;  Marsh  v.  Loader,  P.  736. 

14  C.  B.  N.  s.  535.     The  te.xt-writers         3  Williams  v.  State,  14  Oliio,  222; 

have   said  that  an    infant  can    never  People   v.   Randolph,  2   Parker,    174 ; 

plead  constraint  of  the  parent,  but  this  Commonwealth  r.  Green,  2  Pick.  380. 
may  be  doubted.     See   Humphrey    v.  *  State  v.  Learnard,  41  Vt.  585  ;  Wil- 

Douglass,  10  Vt.   71;  Commonwealth  let  y.  Commonwealth,  13  Bush,  230. 
w.  Mead,  10  Allen,  398;  State  ('.  Learn-         ^i   Hawk.   1 ;  4   Bl.    Com.   28;   1 

ard,  41  Vt.  585.  Bish.  Crim.  Law,  §  4G2. 

2  1  Bish.    Crim.  Law,  §§  46G,  672,         e  People  v.  Kendall,  25  Wend.  399. 
and  cases   cited;    State  v.   Handy,  4         ^  Chandler  u.  Commonwealth,  4  Met. 

(Ky.)  66. 

559 


§  397  THE   DOMESTIC   EELATIONS.  [PART  V- 

prima  facie  presumption  of  incapacity  being  overcome  ;  ^  and 
for  perjury. 2  But  a  child  less  than  seven  cannot  be  indicted  for 
nuisance,  though  owner  of  the  land.^  And  it  is  reasonable 
to  add  that  the  evidence  of  malice  which  is  to  supply  age  ought 
to  be  strong  and  clear,  beyond  all  doubt  and  contradiction.* 

§  396.  Infant's  Criminal  Complaint ;  Infant  as  Prosecutor.  — 
An  infant,  it  is  held  in  Tennessee,  may  make  a  criminal 
complaint,  and  be  what  is  known  as  the  prosecutor.^ 

§  397.  Whether  Infant  may  make  a  Will.  —  The  age  at 
which  persons  may  dispose  of  their  property,  real  or  personal, 
by  last  will  and  testament,  is  now  determined  by  statute  in 
England,  and  in  most  parts  of  the  United  States.  In  Eng- 
land, the  modern  statute  1  Vict.  c.  26,  §  7,  provides  that  no 
will  made  hy  any  person  under  the  age  of  twentj'-one  3'ears 
shall  be  valid.  This  went  into  effect  in  ISSS.*^  And  the  pro- 
visions of  this  statute  have  been  substantially  enacted  either 
before  or  since  in  most  of  the  American  States ;  so  that  the 
policy  of  the  present  day  may  be  said  to  exclude  the  testa- 
mentary capacity  of  all  infants.''  Nor  is  this  unjust ;  for  the 
law  itself  draws  up  as  good  a  will  for  children  as  they  are 
likely  to  make  for  themselves. 

But  the  ancient  rule  was  otherwise :  namely,  to  the  effect 
that  males  at  fourteen  and  females  at  twelve  might  make 
wills  of  their  personal  property  ;  thus  conforming  to  the  older 
rule  of  the  civil  and  canon  law.^  And  such,  as  we  have  seen, 
was  the  age  when  a  testamentary  guardian  could  be  ap- 
pointed. But  though  no  objection  was  admissible  to  the 
probate  of  wills  in -the  ecclesiastical  courts,  merely  for  want 

1  See  4  Bl.  Com.  23,  24;  1  Bish.  is  hy  habeas  cor/9us,  and  not  annulment 
Crim.  Law,  §  464,  and  cases  cited  ;  of  the  sentence.  Catliing  v.  State,  62 
State  V.  Barton,  71  :Mo.  288.  Ga.  243. 

2  Willeti'.  Commonwealth,  13  Bush,  5  state  v.  Dillon,  1  Head,  3S9. 
230.                                                                     6  See  also  20  &  21  Vict.  c.  77. 

3  People  ?'.  Townsend,  3  Hill,  479.  ^  i  Rgdf.  Wills,  15-18  ;  4  Kent  Com. 

4  See  4  Bl.    Com.    24 ;     Common-  506,  507. 

wealth  V.  Mead,  10  Allen,  398  ;  Stephen-  ^  i  Wms.  Ex'rs,  15  ;    1  Redf.  Wills, 

son  V.  State,  28  Ind.  272.     As  to  recog-  15-17.     But   there   are   some   irrecon- 

nizance  to  answer  for  criminal  offence,  cilable   opinions  on  the  subject  to  be 

see  State  v.  Weatherwax,  12  Kan.  463.  found  in  the  old  books.     See  Co.  Litt. 

Where   a   minor  is  imprisoned  under  89  b,  Hargrave's  note. 
an  illegal  sentence,  the  proper  remedy 

560 


CHAP.  I.]     THE   GENERAI-    DISABILITIES    OF   INFANTS.      §  397 

of  age,  3^et  if  it  could  be  shown  that  the  testator  was  not  of 
sufficient  discretion,  whether  of  the  age  of  fourteen,  or  four- 
and-twenty,  that  would  overthrow  the  testament.^  This 
always  operated  to  discourage  such  wills  from  being  made. 
And  yet  the  objection  was  not  insuperable  ;  for  there  is  a 
clear  instance  on  record  where  an  infant  sixteen  years  of 
age  made  a  testament  in  favor  of  his  guardian  and  school- 
master, which  was  established  by  evidence  of  the  child's 
capacity  and  free  will.^ 

The  English  text-writers,  with  reference  to  the  old  law, 
have  laid  it  down  that  express  approval  of  a  former  will  after 
the  infant  had  accomplished  the  years  of  fourteen  or  twelve 
would  make  it  strong  and  effectual.^  But  as  concerns  the 
later  statutes,  if  not  as  a  general  principle  for  modern  times, 
it  appears  pretty  clear  that  where  a  will  is  required  to  be  in 
writing,  and  executed  before  witnesses,  in  order  to  be  valid, 
and  is  thus  executed  before  the  testator  arrives  at  the  re- 
quired age,  it  cannot  be  rendered  valid  after  the  testator 
arrives  at  such  age,  except  by  republication  with  all  the 
usual  formalities.*  And  even  the  old  books  admit  that  the 
mere  circumstance  of  an  infant  having  lived  some  time  after 
the  age  when  he  became  capable  of  making  a  will  cannot 
alone  give  validity  to  one  made  during  his  incapacity.^ 

The  maxims  of  the  older  law  on  this  subject  adhere  some- 
what to  American  jurisprudence;  for  we  find  that  in  many 
States  a  distinction  is  still  made  between  personal  and  real 
estate  as  to  the  right  of  an  infant  to  dispose  of  the  property 
by  will. 6 

1  2  Bl.  Com.  497;  1  Wras.  Ex'rs,  15.     alty  in  the  same  manner  at  eighteen  ; 

2  Arnold  v.  Earle,  2  Cas.  temp.  Lee,  and  in  Connecticut  at  twenty-one  for 
529.  real  estate,  and  seventeen  for  person- 

8  1  Wnis.  Ex'rs,  16;   Swinb.  pt.  2,  alty.     Among    the   States   where   the 

§  2,  pi.  7;  Bac.  Abr.  Wills,  B.  right  to  dispose  of  estate,  both  real  and 

*  1  Eedf.  Wills,  19.  personal,  is  now  limited  to  persons  of 

5  Herbert  v.    Torball,   1    Sid.  162;  full  age,  are  jMassacIuisetts.  Vermont, 

Swinb.  pt.  2,  §  2,  pi.  5  ;  1  Wms.  Ex'rs,  New  Hampshire,  Maine.  Oliio,  Indinma, 

16.  New  Jersey,  Kentucky,  Virginia,  Penn- 

^  Thus   in  Rhode  Island,  Virginia,  sylvania,  Delaware,  and  Michigan.     In 

Arkansas,  and   Missouri,   the   age  for  some  States,  a  distinction  is  made  be- 

making  wills  of  real  estate  is  fixed  at  tween  males  and  females  as  to  testa- 

twenty-onc,  and  for  disposing  of  person-  mentary  capacity,  and  the  latter  may 

36  561 


§  398  THE   DOMESTIC   KELATIONS.  [PART   V. 

§  398.  Testimony  of  Infants.  —  Infants  may  be  admitted  to 
testify  in  the  courts,  if  of  sufficient  understanding.  Tiiere  is 
no  precise  age  at  which  the  law  excludes  them  on  the  con- 
clusion that  they  are  mentall}'"  and  morally  incompetent.  By 
the  common-law  rule,  every  person  over  the  age  of  fourteen 
is  presumed  to  have  common  discretion  and  understanding 
until  the  contrary  appears ;  but  under  that  age  it  is  not  so 
presumed  ;  and  the  court  will  therefore  make  inquiry  as  to 
the  degree  of  understanding  which  the  child  offered  as  a 
witness  may  possess.  But  this  preliminary  examination, 
which  is  made  by  the  judge  at  discretion,  is  to  be  directed  to 
the  point  whether  the  witness  comprehends  the  solemn  ol)liga- 
tion  of  an  oath ;  and  if  the  child  appears  to  have  sufficient 
natural  intelligence  to  distinguish  between  good  and  evil, 
and  to  comprehend  the  nature  and  effect  of  an  oath,  he  is 
an  admissible  witness.^  In  Indiana,  a  statute  provides  that 
all  children  over  the  age  of  ten  shall  be  presumed  to  be  com- 
petent. And  in  various  States  a  child  nearly  ten  years  of 
age  has  been  deemed  competent  to  testify,  whose  answers 
when  she  was  examined  by  the  court  disclosed  that,  though 
she  was  ignorant  of  the  nature  of  the  punishment  for  false 
swearing,  yet  she  comprehended  the  obligations  of  an  oath 
and  believed  that  any  deviation  from  the  truth,  while  under 
oath,  would  be  followed  by  appropriate  punishment.^  Less 
expression  even  than  this  has  been  required  of  children 
about  this  age,  where  the  due  comprehension  appeared,  not- 
withstanding nervous  agitation  natural  to  the  surroundings.^ 
Of  the  capacity  of  such  witnesses  for  comprehending  the 
matter  as  to  which  they  testify,  of  the  strength  of  the  mem- 
make  wills,  as  in  Vermont  and  Mary-  637;  Posey  v.  Posey,  3  Strobh.  1G7 ; 
land,  at  eighteen.  In  New  York  and  Corrie's  Case,  2  Bland.  Ch.  488. 
Illinois,  the  principle  is  to  discriminate  ^  Greenl.    Evid.    §    367 ;     2    Puss, 

between  real  and  personal  estate,  and  Crimes,  590;  Rex  v.  Brazier,  1  East 
between  males  and  females ;  and  while  P.  C.  443;  State  v.  Whittier,  21  Me. 
as 'young  as  si.xteen  a  female  in  the     341. 

former  State  may  make  a  valid  will  of         ^  Blackwell  v.  State,  11  Ind.   196; 
personalty      See  1  Redf.  Wills,  18  n. ;     Draper  v.  Draper,  68  111.  17  ;  Vincents. 
4  Kent   Com.   506,   507 ;   Williams  v.     State,  3  Heisk.  120. 
Heirs,  Busbee,  271;   Davis  v.  Baugh,  ^  Davidson  v.  State,  39  Tex.  129; 

1  Sneed,  477 ;  Moore  v.  Moore,  23  Tex.     State  v.  Scanlan,  58  Mo.  204. 

662 


CHAP.  I.]     THE   GENERAL   DISABILITIES   OP   INFANTS. 


398 


oiy,  and  in  general  as  to  the  weight  which  may  be  attached 
to  their  testimony  in  any  particular  state  of  facts,  a  jury 
should  make  their  estimate  carefully.^ 

Children  have  been  admitted  to  testify  at  the  early  age  of 
seven,  and  even  of  five  ;  ^  but  the  dying  declarations  of  a  child 
only  four  years  old  were  once  ruled  out,^  for  the  reason  that, 
however  precocious  the  child's  mind,  she  could  not  have  had 
that  idea  of  a  future  state  which  is  necessary  to  make  such 
declarations  admissible.^  Different  systems  of  religious  edu- 
cation render  the  judicial  test  in  this  respect  far  from  precise  ; 
for  while  there  are  cases  where  the  court  has  put  off  a  trial, 
in  order  to  specially  instruct  an  infant  witness  as  to  the 
nature  and  solemnity  of  an  oath,  this  practice  is  not  of  late 
years  strongly  countenanced ;  the  opinion  gaining  ground 
that  the  effect  of  the  oath  upon  the  conscience  should  arise 
from  religious  feelings  of  a  permanent  nature  and  gradual 
growth.^  But  in  cases  where  the  intellect  is  sufficiently 
matured,  but  the  education  only  has  been  neglected,  it  ap- 
pears that  a  postponement  of  the  trial  might  properly  be 
asked.^ 


1  Competence  to  testify  is  not  in- 
consistent with  civil  immunity  at  such 
an  age  for  perjury.  Johnson  v.  State, 
61  Ga.  35.  See  Peterson  v.  State,  47 
Ga.  524. 

2  lb.  Female  child  of  eight  held  a 
competent  witness  in  prosecution  for  a 
criminal  assault  upon  her.  Wade  v. 
State,  50  Ala.  164. 

3  Rex  V.  Pike,  3  Car.  &  P.  598 ;  Re.x 
V.  Brazier,  1  East  P.  C.  443. 

4  Rex  V.  Pike,  3  Car.  &  P.  598.  And 
see  Rex  v.  Brazier,  1  East  P.  C.  443 ; 
1  Greenl.  Evid.  §  367  ;  Commonwealth 
V.  Hutchinson,  10  Mass.  225. 

6  Rex  V.  White,  2  Leach  C.  C.  48, 
n. ;  1  Greenl.  Evid.  §  367  ;  Rex  v.  Wil- 
liams, 7  Car.  &  P.  320;  Regina  v. 
Nicholas,  2  Car.  &  K.  246. 

6  Per  Pollock,  C.  B.,  Regina  v. 
Nicholas,  ib.  With  regard  to  the 
weight  and  effect  of  the  testimony  of 
children,  Blackstone  observes  that 
when  the   evidence  of  children  is  ad- 


mitted, "it  is  much  to  be  wished,  in 
order  to  render  the  evidence  credible, 
that  there  should  be  some  concurrent 
testimony  of  time,  place,  and  circum- 
stances, in  order  to  make  out  the  fact ; 
and  that  a  conviction  should  not  be 
grounded  on  the  unsupported  accusa- 
tion of  an  infant  iinder  years  of  discre- 
tion." 4  Bl.  Com.  214.  To  this  Mr. 
Phillips  replies  that  in  many  cases, 
undoubtedly,  the  statements  of  chil- 
dren are  to  be  received  with  great 
caution  ;  yet  that  a  prisoner  may  be 
convicted  upon  such  testimony  alone 
and  unsupported  ;  and  that  the  extent 
of  corroboration  necessary  is  a  ques- 
tion exclusively  for  a  jury.  It  may  be 
observed  that  the  preliminary  inquiry 
as  to  the  competency  is  not  always  of 
the  most  satisfactory  description,  and 
is  such  tliat  a  child  might,  upon  slight 
practising  of  the  memory,  appear  well 
qualified.  The  severest  test  appears 
in  the  examination  which  follows ;  and 

663 


§  399  THE    DOMESTIC    RELATIONS.  [PART   V. 

On  the  principle  that  chancery  is  bound  to  see  that  an  in- 
fant litigant's  rights  and  interests  are  protected,  not  only  is  an 
unwilling  infant  not  compellable  to  testify  in  his  suit,  but  his 
deposition,  though  given  freely  on  his  part,  may  be  suppressed, 
at  the  discretion  of  the  court,  as  containing  admissions  un- 
favorable to  his  cause.^ 

§  399.  Marriage  Settlements  of  Infants.  —  With  respect  to 
the  marriage  settlement  of  infants,  there  was  formerly  consid- 
erable controversy.  For,  on  the  one  hand,  it  was  urged  that 
infants  were  in  general  incapable  of  entering  into  valid  con- 
tracts with  respect  to  their  property  ;  on  the  other,  that  since 
infants  might  make  a  valid  contract  of  marriage,  they  ought 
to  be  able  to  arrange  the  preliminaries.  At  an  early  period 
the  opinion  prevailed  in  England  that  the  marriage  consid- 
eration communicated  to  the  contracts  of  infants,  respecting 
their  estate,  an  efficacy  similar  to  that  which  the  law  stamps 
upon  marriage  itself;  and  Lords  Hardwicke  and  Maccles- 
field contributed  to  strengthen  it,  by  maintaining  that  the  real 
estate  of  an  infant  would  be  bound  by  a  marriage  settlement.^ 
Lord  Northington  later  held  to  a  different  opinion ;  and  Lord 
Thurlow  overturned  the  doctrine  altogether,  boldly  declaring 
that  the  contracts  of  male  and  female  infants  do  not  bind 
their  estates,  and  that  consequently  a  female  infant  cannot 
be  bound  by  any  articles  entered  into  during  minority,  as 
to  her  real  estate  ;  but  may  refuse  to  be  bound,  and  abide  by 
the  interest  the  law  casts  upon  her,  which  nothing  but  her 
own  act  after  the  period  of  majority  can  fetter  or  affect."^ 
Other  distinguished  equity  jurists,  including  Lord  Eldon, 
subsequently  expressed  their  approval  of   Lord    Thurlow's 

as  Mr.  Phillips  well  concludes,  "  Inde-         i  Serle  v.  St.  Eloy,  2  P.  Wms.  386 ; 

pendently  of  the  sanction  of  an  oath,  Napier  i'.  Effingham,  2  P.  Wms.  403; 

the  testimony  of  children,  after  they  Moore  v.  Moore,  4  Sandf.  Ch.  37.    But 

have  been  subjected  to  cross-examina-  see  Walker  v.  Thomas,  2  Dick.  781 ; 

tion,  is  often  entitled  to  as  much  credit  Bennett  v.  Welder,  15  Ind.  332. 

as    that  of   grown   persons;   what  is         ^  Uarvey    v.   Ashley,   3  Atk.   607; 

wanted  in  the  perfection  of  the  Intel-  Cannel    v.  Buckle,   2   P.    Wms.   243 ; 

lectual    faculties    is    sometimes   more  Peachey  Mar.  Settl.  25  et  seq. 

than  compensated  by  the   absence  of  3  Urury  j,.  Dmry,  2  Eden,  58;  Durn- 

motives  to  deceive."     1  Phil.  Evid.  9th  ford  v.  Lane,  1  Bro.  C.  C.  115;  Clough 

ed.  6,  7.  V.  Clough,  5  Ves.  716. 

564 


CHAP.  I.]     THE   GENERAL   DISABILITIES   OF   INFANTS.      §  399 

decision.^  And  the  rule  became  settled  within  the  last  fifty 
years,  that  the  real  estate  of  a  female  infant  was  not  bound 
by  the  settlement  on  her  marriage,  because  her  real  estate 
does  not  become  by  the  marriage  the  absolute  property  of  the 
husband,  although  by  the  marriage  he  takes  a  limited  interest 
in  it.2  So  was  it  decided  that  neither  the  approbation  of  the 
parents  or  guardians,  nor  even  of  the  court  of  chancery, 
independently  of  positive  statute,  would  make  the  infant's 
settlements  binding.^  The  inconvenience  of  such  a  state  of 
things  called  for  statute  remedy;  and  in  1855  an  act  was 
passed  which  enabled  male  infants  not  under  twenty,  and 
female  infants  not  under  seventeen,  with  the  approbation  of 
the  court  of  chancery,  to  make  valid  settlements  of  all  their 
property,  real  or  personal,  and  whether  in  possession,  rever- 
sion, remainder,  or  expectancy.^  The  statute  has  already 
received  some  interpretation  in  the  courts  ;  and  so  much  in 
favor  was  it,  that  almost  immediately  upon  its  passage  it  was 
acted  upon  in  chancery. 

This  subject  has  received  little  attention  in  the  United 
States ;  notwithstanding  the  plenary  jurisdiction  over  the 
estates  and  persons  of  infants  which  a  court  of  equity  is 
admitted  to  exercise  in  many  of  our  States.  But  in  New 
York  some  decisions  have  been  made,  of  a  like  tenor  with 
those  in  the  English  chancer}'".  Thus,  in  1831,  that  a  legal 
jointure  settled  upon  an  infant  would  bar  her  dower ;  and, 
by  analogy  to  the  statute,  a  competent  and  certain  provision 
settled  upon  the  infant  in  bar  of  dower,  to  which  there  is  no 

1  See  Peachey  Mar.  Settl.  28;  Mil-  16  Sim.  552;  Field  v.  Moore,  25  L.  J. 
ner  v.  Lord  Harewood,  18  Ves.  275;  Eq.  69;  25  E.  L.  &  Eq.  498. 
Caruthers  v.  Caruthers,  4  Bro.  C.  C.         *  18  &  19  Vict.  c.  43.     See  Peachey 
509.  Mar.   Settl.  45.      For  construction   of 

2  Sirason  v.  Jones,  2  Kuss.  &  M.  376 ;  this  statute,  see  Jn  re  Dalton,  39  E.  L. 
Campbell  v.  Ingilby,  21  Beav.  667 ;  25  &  Eq.  145 ;  s.  c.  6  De  G.  M.  &  G.  201. 
L.  J.  Eq.  7G0.  For  summary  of  the  But  see  lie  Catherine  Strong,  2  Jur. 
English  chancery  doctrine,  see  Peachey  n.  s.  1241  ;  5  W.  R.  107.  Such  infant 
Mar.  Settl.  37.  may   consent  to  a  proposed  reinvest- 

3  Peachey  Mar.  Settl.  53,  54 ;  ib.  29-  ment.  In  re  Cardress,  L.  R.  7  Ch.  D.  728. 
43,  and  cases  cited  passim;  In  re  War-  Or  exercise  during  minority  a  power 
ing,  21  L.  J.  Eq.  784 ;  Simson  v.  Jones,  which  was  apparently  so  intended  in 
2  Russ.  &  M.  365;   Borton  ;;.  Borton,  trust  settlement.    Ib.;  Andrews  r.  An- 
drews, 15  Ch.  D.  228. 

565 


§  400  THE  DOMESTIC   RELATIONS.  [PART  V. 

objection  but  its  mere  equitable  quality.^  And  in  1843,  that 
a  female  infant  was  not  bound  by  agreement  to  settle  her 
real  estate  upon  marriage.^  So,  in  Maryland,  a  female  infant 
cannot  bind  her  real  estate  by  her  marriage  settlement.^ 

An  objection  to  the  validity  of  a  marriage  settlement,  on 
the  ground  that  the  parties  to  it  were  infants,  can  only  be 
made  by  the  parties  themselves.  A  trustee  acting  under  it 
has  no  such  power.*  But  since  privies  in  blood  can  avoid  an 
infant's  voidable  conveyance,  it  is  held  that  if  the  infant  dies 
after  making  a  settlement  of  real  estate,  and  without  having 
attained  majority,  her  privies  in  blood  may  avoid  the  settle- 
ment.^ There  are  circumstances  under  which  the  infant's 
confirmation  in  part  of  a  settlement  will  be  taken  as  proof 
of  an  intention  to  confirm  the  whole  of  it.^ 

Marriage  articles  are  not  of  themselves  binding  upon  the 
infant  or  her  privies;  but  they  are  binding  upon  the  adult 
husband.'^  Yet  if  the  infant  dies  under  age,  her  privies 
cannot  take  the  benefits  of  the  proposed  settlement  and  of 
the  inheritance  likewise ;  they  may  have  the  more  beneficial, 
and  that  is  all.^ 


CHAPTER   II. 

ACTS  VOID   AND   VOIDABLE. 


§  400.  General  Principle  of  Binding  Acts  and  Contracts,  as  to 
Infants.  —  One  leading  principle  runs  through  all  cases  which 
relate  to  infants.     It  is  that  such  persons  are  favorites  of  the 

1  M'Cartee  v.  Teller,  2  Paige,  511.  As  to  settling  a  small  fund  to  the  sepa- 

2  Temple  v.  Hawley,  2  Sandf.  Ch.  rate  use  of  a  chancery  ward  who  mar- 
153.  ries  the  day  after  she  comes  of  age, 

3  Levering  v.  Levering,  3  Md.  Ch.  see  White  v.  Herriek,  L.  R.  4  Ch.  345. 
365.     See  Burr  v.  Wilson,  18  Tex.  367.  As  to  confirmation,  see  White  .v.  Cox, 

4  Jones  V.  Butler,  30  Barb.  641.  2  Ch.  D.  387. 

5  Levering  v.  Levering,  3  Md.  Ch.  365;  ''  Brown  v.  Brown,  L.  R.  2  Eq.  481 ; 
Whitingham's  Case,  8  Rep.  42;  Mac-  Whichcote  v.  Lyle's  Ex'rs,  28  Penn. 
phers.  Inf.  465 ;  Brown  v.  Brown,  L.  R.  St.  73. 

2  Eq.  481.  ^  Brown  v.  Brown,  ib. 

6  Davies  v.  Davies,  L.  R.  9  Eq.  468. 

666 


CHAP.  II.]  ACTS    VOID    AND   VOIDABLE.  §  401 

law,  which  extends  its  protection  over  them  so  as  to  preserve 
their  true  interests  against  their  own  improvidence,  if  need 
be,  or  the  sinister  designs  of  others.  This  principle  is  found 
constantly  in  chancery  practice.  We  have  traced  it  already 
in  cases  of  custody,  control,  and  guardianship,  —  particularly 
in  such  as  come  before  the  American  courts.  It  appears 
again  in  matters  of  legal  emancipation  and  the  minor's  right 
to  his  own  wages.  It  generally  determines  the  result  of 
transactions  between  an  infant  and  his  parent  or  guardian, 
where  fraud  and  undue  influence  are  suspected.  It  is  applied 
when  a  guardian  presents  his  accounts  for  allowance.  We 
are  now  to  see  this  same  principle  at  work  in  the  general  con- 
tracts of  infants,  controlling  and  regulating  them  in  great 
measure,  and  serving  better  than  any  other  to  explain  the 
shifting  and  contradictory  decisions  of  the  English  and 
American  courts  on  this  vexed  subject. 

Infancy  is  a  personal  privilege,  allowed  for  protection 
against  imposition.  The  geneial  rule  of  the  present  day  is 
that  an  infant  shall  be  bound  by  no  act  which  is  not  benefi- 
cial to  him.^  And  most  contracts  of  infants  are  divided  into 
the  two  classes  of  void  and  voidable  ;  a  third  class  —  namely, 
of  binding  contracts  —  still  remaining  for  separate  considera- 
tion in  our  next  chapter. 

§401.  The  Test  as  to  Void  and  Voidable ;  Infant's  Transac- 
tions.—  There  is  much  confusion  in  the  older  books  on  the 
subject  of  void  and  voidable  acts  and  contracts.^  The  keen- 
ness with  which  such  a  distinction  must  always  cut  is  an 
objection  to  its  practical  use  at  the  present  day  ;  yet  writers 
have  sought  to  adapt  the  weapon  to  the  infant's  wants.  They 
have  searched  for  some  infallible  test  between  void  and  void- 
able. Thus  Mr.  Bingham,  after  a  review  of  the  English  cases, 
years  ago,  concluded  that  the  only  safe  criterion  was,  that 
"acts  which  are  capable  of  being  legally  ratified  are  voidable, 
only ;  and  acts  which  are  incapable  of  being  legally  ratified  are 
absolutely  void."  ^    But  this  was  only  to  shift  the  uncertainty, 

1  Smith  Contr.  225  ;  Met.  Contr.  38,  Infancy  and  Age  (I.),  and  cases  cited 
39;  2  Kent  Com.  234.  in  Zoueh  v.  Parsons,  3  Burr.  1794. 

2  See  Shep.  Touch.  232 ;  Bac.  Abr.  3  ^ing.  Inf.  234. 

567 


§  401  THE   DOMESTIC   RELATIONS.  [PART  V. 

and  replace  one  difficulty  by  another.  What  acts  can  be  legally 
ratified  and  what  cannot  ?  As  Kent  properly  observes,  such 
a  criterion  does  not  appear  to  free  the  question  from  its  em- 
barrassment or  afford  a  clear  and  definite  test.^  Again,  a 
Massachusetts  judge  of  repute  declared,  many  years  ago,  that 
the  books  agree  in  one  result;  that  whenever  the  act  done 
may  he  for  the  infant's  benefit  it  shall  not  be  considered  void, 
but  he  shall  have  his  election,  when  he  comes  of  age,  to  affirm 
or  avoid  it;  and  this,  he  adds,  is  the  only  clear  and  definite 
proposition  which  can  be  extracted  from  the  authorities.^ 
Even  this  rule,  though  much  better,  is  found  difficult  of 
application,  and  has  been  pronounced  unsatisfactory  in  some 
of  the  later  cases.^  Besides,  it  is  lacking  in  comprehensive- 
ness and  scope.  A  more  precise  and  intelligible  test  than 
either  was  that  applied  in  one  of  the  earlier  English  cases  by 
Chief  Justice  Eyre,  and  cited  since  with  approval  by  Judge 
Story  and  Chancellor  Kent :  *  namely,  that  where  the  court 
can  pronounce  that  the  contract  is  for  the  benefit  of  the  in- 
fant, as,  for  instance,  for  necessaries,  then  it  shall  bind  him  ;. 
where  it  can  pronounce  it  to  be  to  his  prejudice,  it  is  void  ; 
and  that  where  it  is  of  an  uncertain  nature,  as  to  benefit  or 
prejudice,  it  is  voidable  only,  and  it  is  in  the  election  of  the 
infant  to  affirm  it  or  not.^  The  doctrine  seems  hardly  capable 
of  a  closer  analysis  ;  yet  even  this  [statement  of  the  legal  test 
is  by  no  means  clear  and  conclusive. 

The  equitable  doctrine  differs  not  from  the  legal  as  to  the 
contracts  of  infants.  In  general,  when  a  contract  is  not 
manifestly  for  the  benefit  of  an  infant,  he  may  avoid  it,  as 

1  2  Kent  Com.  234.  wliile  tliose  manifestly  for  his  hurt  are 

2  Per  Parker,  C.  J.,  Whitney  ?"•  void.  Contracts  falling  between  these 
Dutch,  14  Mass.  457.  See  2  Kent  classes  are  voidable.  Philpot  v.  Biiig- 
Com.  234  ;  Met.  Contr.  .39.  ham,  55  Ala.  435.    Parke,  B.,  in   Wii- 

3  Met.  Contr.  40;  1  Am.  Lead.  Cas.  liams  v.  Moor,  11  M.  &  W.  256,  264, 
4th  ed.  242.  alludes  to  the  'uncertain  sense  of  the 

*  See  United  States  v.  Bainbridge,  word  "void."     The  word  "  void  "  may 

1  Mason,  82;   2  Kent  Com.  2o6;  Mc-  mean  incapable  of  being  enforced;  and 

Can  V.  Marshall,  7  Humph.  121.  the  plea  of  infancy  is  a  bar  to  any  de- 

&  Keane  v.   Boycott,  2  H.  Bl.  511.  mand  on  one  contract  as  well  as  the 

The  rule  is  that  contracts  of  an  infant,  other.      But  "  void  "  may    mean,   too, 

caused  by  his  necessities  or  manifestly  incapable  of  being  ratified, 
for  his  advantage,  are  valid  and  binding, 

568 


CHAP.  II.]  ACTS   VOID   AND   VOIDABLE.  §  402 

well  in  equity  as  at  law  ;  and  when  it  can  never  be  for  his 
benefit,  it  is  utterly  void.  Infants  are  favored  in  all  thiii<i-s 
which  are  for  their  benefit,  and  are  saved  from  being  preju- 
diced by  anything-  to  their  disadvantage.  For  infants  are  by 
law  generally  treated  as  having  no  capacity  to  bind  them- 
selves, from  the  want  of  sufficient  reason  and  discernment  of 
understanding.  In  regard  to  their  acts,  some  are  voidable 
and  some  are  void ;  so  in  regard  to  their  contracts,  some  are 
voidable  and  some  are  void.^  The  liberality  and  freedom  ex- 
ercised in  common-law  courts  at  the  present  day,  in  shaping 
general  doctrines  with  reference  to  infants  and  their  con- 
tracts, must  be  ascribed  in  a  large  degree  to  the  influence  of 
the  equity  tribunals  and  their  decisions.  "  In  short,"  as 
Judge  Story  observes,  "  the  disabilities  of  an  infant  are  in- 
tended by  law  for  his  own  protection,  and  not  for  the  protec- 
tion of  the  rights  of  third  persons ;  and  his  acts  may  there- 
fore, in  many  cases,  be  binding  upon  him,  although  the  per- 
sons, under  whose  guardianship,  natural  or  positive,  he  then 
is,  do  not  assent  to  them."  ^  Where  the  contract  is  voidable, 
not  void,  the  infant  has  his  election  to  avoid  it  either  during 
his  minority  or  within  a  reasonable  time  after  he  attains  ma- 
jority ;  otherwise,  it  is  taken  to  have  been  confirmed,  and  so 
binds  him  forever. 

§  402.  Privilege  of  avoiding  is  Personal  to  Infant;  Rule  as 
to  Third  Persons,  &o.  —  The  privilege  of  avoiding  his  acts  or  con- 
tracts, where  these  are  voidable,  is  a  privilege  personal  to  the 
infant,  which  no  one  can  exercise  for  him,  except  his  heirs 
and  legal  representatives.^  Hence,  the  other  contracting  party 
remains  bound,  though  the  infant  be  not ;  for  being  an  indul- 
gence which  the  law  allows  infants,  to  secure  them  from  the 
IVaud  and  imposition  of  others,  it  can  only  be  intended  for 
their  benefit,  and  is  not  to  be  extended  to  persons  of  the 
years  of  discretion,  who  are  presumed  to  act  with  sufficient 
caution  and  security.*     And  were  it  otherwise,  this  privilege, 

1  1  Story  Eq.  Juris.  §§  240,  241  ;  1  3  jh. ;  Keane  v.  Boycott,  2  H.  Bl. 
Fonbl.  Eq.  b.  1,  cli.  2,  §  4.  And  see  511 ;  Met.  Contr.  38  ;  Smith  Contr. 
Turpin  v.  Turpin,  16  Oliio  St.  270.  231. 

2  United  States  v,  Bainbridge,  1  *  gac.  Abr.  Inf.  1.  4 ;  1  Pars.  Contr. 
Mason,  83.  275-  Johnson  v.  liockwell,  12  Ind.  76; 

569 


§  402  THE  DOMESTIC   RELATIONS.  [PART  V. 

instead  of  being  an  advantage  to  the  infant,  would  in  many- 
cases  turn  out  greatly  to  his  detriment. 

Thus,  Avhere  a  per.son  of  full  age  promises  to  marry  a  minor 
and  afterwards  breaks  off  the  match,  he  may  be  sued  by  the 
minor  upon  this  contract ;  though  he  would  have  had  no  cor- 
responding remedy  against  the  minor  for  breach  of  promise.^ 
So  a  third  person,  not  a  party  to  the  contract,  cannot  take 
advantage  of  the  infancy  of  the  parties.  Thus,  in  an  action 
for  seducing  a  servant  from  his  master's  service,  the  defend- 
ant cannot  justify  on  the  ground  that  the  servant  was  an  in- 
fant, and  therefore  not  by  law  bound  to  perform  his  contract 
for  service  made  with  the  master.^  On  the  same  principle 
(connected  with  others),  the  acceptor  of  a  bill  of  exchange, 
or  the  maker  of  a  promissory  note,  cannot  resist  payment  in 
a  suit  by  an  indorsee,  though  the  indorser  be  an  infant.^  Nor 
can  the  purchaser  at  a  sale  under  an  execution  set  up  infancy 
to  defeat  prior  transactions  of  the  judgment  debtor.^  Nor 
can  the  vendor  avoid  tlie  infant's  purchase  on  such  a  ground.'^ 
Nor  is  a  stranger  permitted  to  impeach  the  conveyance  of  an 
infant.^  So,  too,  it  is  the  settled  doctrine  that  infancy  does 
not  protect  the  indorsers  or  sureties  of  an  infant ;  or  those 
who  have  jointly  entered  into  his  voidable  undertakings. 
They,  if  of  full  age,  may  be  held  liable,  though  the  infant 
himself  should  escape  responsibility.'^     Furthermore,  the  co- 


Hartness  v.  Thompson,  5  Johns.  160 ;  wards    to   pay    the    stipulated    pric«. 

Brown  v.  Caldwell,  10  S.  &  R.  114.  Crymes  v.  Day,  1  Bail.  320.     Where  a 

1  Holt  i;.  Ward,  2  Stra.  937 ;  Harvey  minor  agrees,  as  the  consideration  of 
V.  Ashle.y,  3  Atk.  610  ;  Hunt  v.  Peake,  the  conveyance  of  land,  to  pay  certain 
5  Cow.  475  ;  Willard  v.  Stone,  7  Cow.  22  ;  debts  of  the  grantor,  and  afterwards 
Warwick  v.  Cooper,  5  Sneed,  659 ;  Can-  does  in  fact  pay  them,  it  is  held  that 
non  V.  Alsbury,  1  Marsh.  78;  Rush  v.  the  agreement  constitutes  a  valuable 
Wick,  31  Ohio  St.  521.  consideration  for  such  conveyance,  and 

2  Keane  v.  Boycott,  2  H.  Bl.  511.  will   support  it  against  the   grantor's 
8  Met.  Contr.  39  ;  Taylor  i-.  Croker,  creditors.     Washband  v.  Washband,  27 

4  Esp.  187  ;  Nightingale  v.  Withington,  Conn.  424. 

15  Mass.  273 ;  Hardy  v.  Waters,  38  Me.         ^  Dominick  v.  Michael,  4  Sandf .  374. 

450;  Frazier  v.  Massey,  14  Ind.  382.  "^  Motteaux  v.  St.  Aubin,  2  Black, 

*  Alsworth  r.  Cordtz,  31  Miss.  32.  1138;    Jaffray  v.  Fretain,  5  Esp.  47; 

3  Oliver  v.  Houdlet,  13  Mass.  237.  Hartness  v.  Thompson,  5  Johns.  160; 
A  sale  to  an  infant  is  a  valid  transfer  of  Parker  v.  Baker,  1  Clarke  Ch.  (N.  Y.) 
tlie  property  out  of  the  vendor,  even  136;  Taylor  v.  Dausby,  42  Mich.  82. 
though  the  infant  be  not  bound  after- 

670 


CHAP.  II.]  ACTS   VOID   AND   VOIDABLE.  §  403 

partners  of  an  infant  cannot  use  his  right  of  avoidance  for 
their  own  benefit.^ 

But  third  persons  should  be  allowed  to  protect  themselves 
against  undue  liabilities  on  an  infant's  behalf.  Thus,  an 
officer  selling  property  at  public  auction  is  not  bound  to  ac- 
cept the  bid  of  an  infant.^  And  although  infancy  is  a  per- 
sonal privilege,  yet  the  administrator  of  the  estate  of  an  infant 
may  avail  himself  of  the  infancy  of  liis  intestate,  to  avoid  or 
uphold  a  transaction  to  which  the  latter  was  a  party  during 
his  life,  and  which  remained  voidable  at  his  death .^  And  as 
a  rule  the  right  of  avoidance,  with  due  limitations  of  time 
and  circumstances,  passes  to  privies  in  blood  entitled  to  the 
estate.* 

§  403.  Modern  Tendency  regards  Infant's  Acts  and  Contracts 
as  Voidable  rather  than  Void  ;  Instances  discussed.  —  The  strong 
tendency  of  the  modern  cases  is  to  regard  all  contracts  and 
acts  of  infants  as  voidable  only ;  and  thus  almost  to  obliterate 
the  ancient  distinction  of  void  and  voidable  contracts  alto- 
gether.^ And  the  dicta  are  of  frequent  occurrence  at  the 
present  day  that  deeds  and  contracts  of  an  infant  are  not 
absolutely  void,  but  voidable  only,  unless  manifestly  to  the 
infant's  prejudice  ;  and  that  beneficial  contracts  are  voidable 
only  at  most.^ 

Yet  there  are  cases  where  a  contract  may  still  be  pro- 
nounced absolutely  void.  In  Regina  v.  Lord^  an  English 
case,  the  question  arose  on  the  conviction  of  a  servant  for 
unlawfully  absenting  himself  from  his  master's  employment. 

1  Brown  v.  Hartford  Ins.  Co.,  117  marriage  articles.  See  supra,  §  399. 
Mass.  479  ;  Winchester  v.  Thayer,  129  Devisees  under  a  will,  as  strangers  privy 
Mass.  129.  in  estate  only,  cannot  avoid  the  infant's 

2  Kinney  v.  Showdy,  1  Hill,  544.  contract.      Bozeman  v.  Browning,   31 

3  Counts  V.  Bates,  Harp.  464 ;  Par-  Ark.  364. 

sons  V.  Hill,  8  Mo.  135  ;  Turpin  v.  Tur-  °  See  Met.  Contr.  40 ;  Shaw,  C.  J., 

pin,  16  Ohio  St.  270.  in  Reed  v.  Batchelder,  1  Met.  5-59. 

4  Dominick  v.  Michael,  4  Sandf.  374 ;  6  gee  Ridgely  w.  Crandall,  4  Md.  435  ; 
Beeler  v.  Bullett,  3  A.  K.  Marsh.  281 ;  N.  H.  M.  Fire  Ins.  Co.  v.  Noyes,  32 
Nelson  v.  Eaton,  1  Redf.  (N.  Y.  Sur.)  N.  H.  845;  Jenkins  v.  Jenkins,  12  Iowa, 
498;  Jefford  v.  Ringgold,  6  Ala.  544;  195;  Scott  v.  Buchanan,  11  Humph. 
Illinois  Land  Co.  v.  Bonner,  75  111.  315.  468 ;  Babcock  v.  Doe,  8  Ind.  110  ;  Irvine 
And  see  Nolte  i'.  Libbert,  34  Ind.  163.  v.  Irvine,  9  Wall.  617;  Robinson  v. 
The  principle  of  the  text  applies   to  Weeks,  56  Me.  102. 

671 


§  40J:  THE  DOMESTIC   RELATIONS.  [PART  V. 

Denman,  C.  J.,  in  delivering  the  judgment  of  the  court,  ob- 
served :  "  Among  many  objections,  one  appears  to  us  clearly 
fatal.  He  was  an  infant  at  the  time  of  entering  into  the 
agreement  which  authorizes  the  master  to  stop  his  wages 
when  the  steam-engine  is  stopped  working  for  any  cause. 
An  agreement  to  serve  for  wages  may  be  for  the  infant's 
benefit ;  but  an  agreement  which  compels  him  to  serve  at  all 
times  during  the  term,  but  leaves  the  master  free  to  stop  his 
work  and  his  wages  whenever  he  chooses  to  do  so,  cannot  be 
considered  as  beneficial  to  the  servant.  It  is  inequitable  and 
wholly  void."  ^ 

§  404.  Same  Subject ;  Bonds,  Notes,  &c.  —  So  an  infant's 
bond  with  penalty  and  for  the  payment  of  interest  is  held  to 
be  void  on  the  ground  that  it  cannot  possibly  be  for  his  bene- 
fit.2  And  a  bond  executed  by  a  minor  as  surety  is  void.^  So 
is  a  mortgage  of  a  minor's  property  to  secure  her  husband's 
debt.*  The  infant's  promissory  note  as  surety  is  void.^  And 
so  is  said  to  be  a  release  by  a  minor  to  his  guardian,  wliich 
affords  the  latter  more  protection  than  a  receipt.^  But  in 
Vermont  it  was  decided  that  there  is  no  general  rule  ex- 
empting an  infant  from  paying  interest  as  necessarily  injuri- 
ous to  him  J  An  infant's  release  of  his  legacy  or  distributive 
share  is  held  to  be  void  in  Tennessee.^  In  such  cases,  an  in- 
fant is  called  upon  to  become  the  party  to  some  undertaking 
substantially  for  the  benefit  of  another,  and  not  for  his  own 
profit.  The  construction  of  a  local  statute  will  in  some  cases 
determine  that  an  instrument  is  void,  not  voidable.^     And  an 


1  Qucere.    whether,    notwithstanding  Contr.  40;  Carnahan  v.  Allderdice,  4 
the  dictum  of  Denman,  C.  J.,  in  the  text,  Harrlng.  99. 

more   was   properly  meant  than   that         *  Chandler  v.   McKinney,  6   Mich, 

this  contract  was  Voidable  by  the  in-  217;  Cronise  v.  Clark,  4  Md.  Ch.  403. 

fant.      The  fact  that  it  was  voidable.  See  Colcock  v.  Ferguson,  3  Desaus.  482. 
and  therefore  avoided  by  the   infant,  &  Maples  r.  Wightnian,  4  Conn.  376; 

was  enough  for  the  purposes  of  the  de-  Curtin  v.  Patton,  11  S.  &  R.305  ;  Night- 

cision.     Regina  v.  Lord,  12  Q.  B.  757.  ingale  v.  Withington,  15  Mass.  272. 
Cf.  Leslie  v.  Fitzpatrick,  3  Q.  B.  D.  229.         6  Fridge   v.  State,   3  Gill  &  Johns. 

2  Baylis  v.  Dineley,  3  M.  &  S.  477 ;  115. 

Fisher  v.  Mowbrav,  8  East,  330.  ^  Bradley  v.  Pratt,  23  Vt.  378. 

3  Allen  I'.  Minor,  2  Call,  70;  Met.         «  Langford  v.  Frey,  8  Ilunipli  443. 


672 


9  Hoyt  V.  Swar,  53  111.  134. 


CHAP.  11.]  ACTS   VOID   AND    VOIDABLE.  §  405 

assignment  by  the  infant  in  trust  for  the  benefit  of  creditors 
is  held  in  New  York  void  and  not  voidable.^ 

Now  it  is  admitted  that  the  decisions  are  frequently  con- 
tradictory and  uncertain  ;  yet  these  cases  of  void  contracts 
almost  invariably  proceed  upon  the  doctrine  that  the  infant's 
act  was  prejudicial  to  his  interest ;  and  certainly  if  any  con- 
tract can  be  so  pronounced  on  mere  inspection,  it  is  a  con- 
tract whereby  an  infant  becomes  bound  upon  another's  debt. 
The  technical  form  of  the  transaction  is  of  less  importance. 
There  are  many  cases  where  an  infant's  bonds,  mortgages, 
and  promissory  notes  have  been  held  not  void,  but  under  the 
circumstances  of  the  case  voidable  only,  as  where  given  in 
ordinary  transactions  which  may  possibly  prove  beneficial 
with  relation  to  the  minor's  property .^  And  reference  to 
the  latter  cases  will  show  that  the  modern  rule  is  broadly 
announced  in  many  States,  that  an  infant's  promissory  note, 
his  statutory  recognizance,  and  his  mortgage,  whether  of 
real  estate  or  chattels,  are  all  voidable,  rather  than  void  in 
general.^  Even  an  infant's  contract  as  surety  or  indorser 
has  lately  been  pronounced  voidable  and  not  void  in  numerous 
instances.*  This  we  conceive  to  be  the  reasonable  view  of 
the  subject ;  the  rule  of  voidable,  rather  than  void,  applying 
wherever  the  transaction  was  not  from  its  very  nature  such  as 
could  be  pronounced  prejudicial  to  the  infant's  interest. 

§  405.  Same  Subject;  Deeds,  &c.  Rule  of  Zouch  v.  Parsons. 
—  It  is  true,  however,  that  the  decisions  are  not  invariably 

1  Yates  V.  Lyon,  61  Barb.  205.  ^  See   e.  g.    Goodsell   v.    Myers,   3 

2  State  V.  Plaisted,  43  N.  H.  413  :  Wend.  479  ;  Reed  v.  Batchelder,  1  Met. 
Richardson  v.  Boright,  9  Vt.  308;  559 ;  Patchkin  y.  Cromack,  13  Vt.  330  ; 
Palmer  v.  Miller,  25  Barb.  399  ;  Reed  State  v.  Plaisted,  43  N.  H.  413,  and 
V.  Batchelder,  1  Met.  559  ;  Patchkin  v.  cases  cited ;  Palmer  r.  Miller,  25  Barb. 
Cromack,  13  Vt.  330;  Conroe  v.  Bird-  399;  Mustard  v.  Wohlford,  15  Gratt. 
sail,  1  Johns.  Cas.  127 ;  Everson  v.  Car-  329.  Whether  infant's  own  statutory 
penter,  17  Wend.  419;  Monumental,  recognizance  in  a  criminal  proceeding 
&c.,  Association  v.  Herman,  33  Md.  128 ;  may  not  be  more  than  voidable,  i.  e. 
Dubose  V.  Wheddon,  4  M'Cord,  221 ;  binding,  see  next  c. ;  State  v.  AVeather- 
Little   V.    Duncan,    9   Rich.   55.      See  wax,  12  Kan.  463. 

Adams  i'.  Ross,  1  Vroom  (N.  J.),  505;  *  Owen    v.    Long,   112   Mass.  403; 

Kempson  v.  Ashall,  L.  R.  10  Ch.  15;  Hardy  v.  Waters,  38  Me.  450;  Harner 

Garin  v.  Burton,  8  Ind.  69.     But  see  v.  Dipple,  31  Ohio  St.  72  ;   Fetrow  v. 

M'Minn  v.  Richmond,  6  Yerg.  9  ;  Bceler  Wiseman,    40    Ind.  148  ;    Williams  v. 

V.  Young,  1  Bibb,  519.  Harrison,  11  S.  C.  412. 

673 


§  405  THE   DOMESTIC   RELATIONS.  [PART   V. 

placed  by  the  court  upon  this  ground.  The  rule  of  Perkins, 
which  was  adopted  by  the  Court  of  King's  Bench  in  the  cele- 
brated case  of  Zouch  v.  Parsons^  is  that  all  deeds  of  an  infant 
which  do  not  take  effect  by  delivery  of  his  hand  are  merely 
void,  and  all  such  as  do  take  effect  by  delivery  of  his  hand 
are  voidable.  In  the  one  case  an  interest  is  conveyed,  in 
another  a  mere  power.^  This  case  has  come  down  as  author- 
ity for  all  future  times ;  and  the  rule  has  frequently  been 
cited  with  approval,  in  support  of  mortgages,  bonds,  and 
deeds ;  but  we  question  the  propriety  of  its  modern  applica- 
tion as  a  principle,  however  useful  in  describing  an  incident. 
So  manual  delivery,  it  was  said,  must  accompany  the  sale  of 
an  infant's  personal  property  to  render  it  valid  .^  The  real 
reason  of  such  a  rule  might  have  been  that  solemn  instru- 
ments and  transactions  of  grave  importance  ought  not  to  be 
lightly  entered  upon ;  but  it  is  clear  that  ere  the  present  day 
much  of  the  ancient  veneration  for  parchment  deeds  under 
seal  has  disappeared,  while  the  tendenc}^  is  to  place  real  and 
personal  estate  transactions  on  much  the  same  footing,  distin- 
guishing rather  by  the  value  than  the  nature  of  the  property. 
We  admit,  however,  that  the  common  law  draws  a  strong 
line  of  demarcation  between  real  and  personal  property ;  so 
that  title  transfer  of  the  former  kind  requires  far  more  posi- 
tive formality  than  that  of  the  latter. 

Now  to  continue.  It  is  held  that  an  infant  may  make  a 
voidable  purchase  of  land  ;  for,  says  Lord  Coke,  striking  the 
legal  principle  with  wonderful  clearness  for  that  day,  '•'■it 
is  intended  for  his  benefit,  and  at  liis  full  age  he  may  either 
agree  thereunto  and  perfect  it,  or,  without  au}'^  cause  to  be 
alleged,  waive  or  disagree  to  the  purchase."^  For  this  rea- 
son, rather  than  the  technical  one  just  referred  to,  it  may  be 
said  in  general  that  the  conveyance  of  land  by  a  minor  is  also 
voidable  and  not  void;*    though  here  again  the  courts  have 

1  Perkins,  §  12;  Zouch  v.  Parsons,  ^  (^Jq.  Litt.  2  5  ;  Met.  Contr.  40;  Bac. 
3  Burr.  1804;  Bool  v.  Mix,  17  Wend.  Abr.  Inf.  6;  Ferguson  v.  Bell,  17  Mo. 
131 ;  2  Kent  Com.  2-36,  237,  n. ;  State  347.  And  see  Spencer  v.  Carr,  45  N.  Y. 
V.  Plaisted,  43  N.  H.  413;    Conroe  v.  406. 

Birdsall,  1  Johns.  Cas.  127.  *  Kendall  v.  Lawrence,  22  Pick.  540; 

2  Fonda  u.  Van  Home,  15  Wend.  631.     Gillet  v.  Stanley,  1  Hill,  121;  Bool  v. 

574 


CHAP.  II.]  ACTS    VOID    AND    VOIDABLE.  §   406 

been  prone  to  cite  the  rule  of  Perkins.  But  the  decided 
cases  usually  presume  that  a  valuable  consideration  has  passed 
to  the  infant,  or  at  least  that  there  is  nothing  prima  facie 
prejudicial  to  him.  Lord  Chancellor  Sugden,  in  1842,  in 
Allen  V.  Allen,  took  occasion  to  review  Lord  Mansfield's  de- . 
cision  in  Zouch  v.  Parsons,  and  commended  it  as  sound  law 
in  respect  that  a  deed  which  takes  effect  by  delivery,  and  is 
executed  by  an  infant,  is  voidable  only ;  though  he  intimated 
that  his  own  decision  might  equally  well  be  referred  to  the 
benefit  arising  to  the  infant  from  the  deed  ;  which,  indeed, 
was  one  of  the  grounds  on  which  Lord  Mansfield  had  decided 
that  celebrated  case.^  An  infant's  conveyance  of  land  by  way 
of  gift  or  without  consideration  is  held  to  be  void,  because 
obviously  prejudicial  to  his  interests.^ 

So  leases  to  infants  are  not  absolutely  void  ;  but  voidable 
only.3  And  an  exchange  of  property  made  by  an  infant  is 
voidable.*  And  it  is  held  that  the  infant's  bond  for  title  to 
real  estate  is  voidable  and  not  void.^ 

§  406.  Same  Subject;  Letters  of  Attorney  ;  Cognovits,  &c.  — 
So  a  power  of  attorney  to  authorize  another  to  receive  seisin 
of  land  for  an  infant,  in  order  to  complete  his  title  to  an 
estate  conveyed  to  him  by  feoffment,  is  voidable  only  ;  it  be- 
ing an  authority  to  do  an  act  for  his  probable  benefit.'^ 

But  letters  of  attorney  from  an  infant  conveying  no  present 
interest  are  held  to  be  absolutely  null.  This  point  was  dis- 
cussed in  Zouch  v.  Parsons,  and  on  the  distinction  of  Per- 
kins's  rule,  it  was  maintained   that  writings  "  which  take 

Mix,  17  Wenfl.  119;  WHieaton  v.  East,         ^  Allen  v.  Allen,  3  Dru.  &  War.  340. 

5  Yerg.  41 ;  Phillips  v.  Green,  5  Monr.  See  Co.  Litt.  51  h,  n.  by  Hargrave. 
344 ;    Eagle  Fire  Ins.   Co.  v.  Lent,  6         2  Swafford  v.  Ferguson,  3  Lea,  292. 

Paige,  635 ;    Allen  v.  Poole,  54  Miss.  Cf.  Slaughter  v.  Cunningham,  24  Ala. 

323;    Illinois  Land  Co.  v.  Bonner,  75  260. 

III.  315;    Dixon  v.  Merritt,  21  Minn.         3  Zouch  v.  Parsons,  3  Burr,  1806; 

196;    Davis   v.  Dudley,  70  Me.   236;  Hudson  u.  Jones,  3  Mod.  310;  Taylor 

Weaver  v.  Carpenter,  42  Iowa,  343;  Landlord  &  Tenant,  and  cases  cited; 

Schaffer  v.  Lavretta,  57  Ala.  14.     And  Griffith  v.  Schwendcrman,  27  Mo.  412. 
so  as  to  infant  wife.    Scranton  v.  Stew-         4  Co.  Litt.  51  b ;  Williams  i'.  Brown, 

art,  52  Ind.  68.     Or  infant  husband.  34  Me.  594. 

Barker  v.  Wilson,  4  Heisk.  268 ;  Yourse         ^  Weaver  v.  Jones,  24  Ala.  420.1 
V.  Norcross,  12  Mo.  549.  ^  Met.  Contr.  41 ;   1  Roll.  Abr.  730; 

Zouch  V.  Parsons,  supra. 

575 


§  406  THE   DOMESTIC    RELATIONS.  [PART   V. 

effect "  cannot  include  letters  of  attorney,  or  deeds  which 
delegate  a  mere  power  and  convey  no  interest.  Whatever 
might  be  thought  of  this  explanation  the  conclusion  follows  : 
"  that  powers  of  attorney  are  an  exception  to  the  general  rule, 
that  the  deeds  of  infants  are  only  voidable ;  and  a  power  to 
receive  seisin  is  an  exception  to  that.  The  end  of  tlie  privi- 
lege is  to  protect  infants  ;  and  to  that  object  all  the  rules  and 
their  exceptions  must  be  directed."  ^  And  the  English  courts 
have  uniformly  held  the  infant's  warrant  of  attorney  void, 
even  though  executed  jointly  with  others.^  In  this  country, 
there  are  decisions  in  some  States  to  the  same  effect;^  in 
others,  again,  the  rule  is  deemed  somewhat  doubtful.* 

An  infant's  power  of  attorne}'-  to  another  to  sell  his  lands 
is  deemed  so  manifestly  unbeneficial  on  the  face  of  it  as  to 
be  void,  and  a  sale  made  under  such  a  power  does  not  confer 
even  an  inchoate  title.^  But  a  power  of  attorney  from  an  in- 
fant to  sell  a  note  is  lately  held  voidable,  not  void,  in  Cali- 
fornia.'^ In  Massachusetts,  an  instrument  of  assignment,  not 
under  seal,  which  appoints  the  assignee  attorne)'  to  receive 
the  fund  to  his  own  use,  is  not  void."  And  in  Maine  the  act 
of  an  infant  in  transferring  a  negotiable  note,  though  his 
name  be  written  by  another  under  parol  authority,  is  voidable 
only.^  The  good  sense  of  the  rule  seems  to  be,  as  a  recent 
writer  observes,  that  an  authority  delegated  by  an  infant  for 
a  p'urpose  which  may  be  beneficial  to  him,  or  which  the  court 
cannot  pronounce  to  be  to  his  prejudice,  should  be  considered 
as  rendering  the  contract  made,  or  act  done  by  virtue  of  it, 

1  Per  Lord  Mansfield,  in  Zouch  v.  See  Whitney  v.  Diitcli,  14  Mass.  457; 
Parsons,  o  Burr.  1804.  And  see  Cum-  Met.  Contr.  41 ;  Cummings  v.  Powell, 
mings  r.  Powell,  8  Tex.  88.  8  Tex.  88 ;  1  Am.  Lead.  Cas.  4th  ed. 

2  Saunderson  v.  Marr,  1  H.  Bl.  75 ;  242  et  scq. 

Ashlln  V.  Langton,  4  Moore  &  S.  719,         5  Philpot  r.  Bingham,  55  Ala.  435. 

and  cases  cited.  Cf.  Weaver  v.  Carpenter,  42  Iowa,  343; 

3  Lawrence  v.  M'Arter,  10  Ohio,  37 ;  Armitage  v.  Widoe,  36  Mich.  124. 
Waples   V.  Hastings,  3   Harring.  403;         ^  Hastings    v.  Dollarhide,  24    Cal. 
Bennett  v.  Davis,  6  Cow.  393 ;   Semple  195. 

V.  Morrison,  7  Monr.  298;  Pyle  v.  Cra-         "^  McCarty  v.  Murray,  3  Gray,  578. 

vens,  4   Litt.  17  ;    Knox  v.  Flack,  22  And  see  Kingman  v.  Perkins,  105  Mass. 

Penn.  St.  337.  111. 

4  Pickler  v.  State,  18  Ind.  266.     But         8  Hardy  v.  Waters,  38  Me.  450. 
see  Trueblood  t'.  Trueblood,  8  Ind.  195. 

576 


CHAP.  II.]  ACTS    VOID   AND    VOIDABLE.  §  407 

as  voidable  only,  in  the  same  manner  as  his  personal  acts  and 
contracts  are  considered.^  And,  we  may  add,  the  English 
and  most  of  the  American  decisions  do  not  seem  to  carry 
the  rule  beyond  cases  of  the  technical  "  warrant  of  attorney  " 
to  appear  in  court  and  bind  the  infant,  as  in  confessing 
judgment,  except  it  be  with  reference  to  an  infant's  land, 
which  power  stands  upon  a  strong  footing  of  objection. 
What  we  call  "  powers  of  attorney  "  are  less  likely  than  the 
warrant  of  attorney  to  be  to  the  infant's  prejudice;  though 
we  may  well  assume  that  whatever  an  infant  cannot  do  he 
cannot  authorize  another  to  do  for  him,  so  as  to  make  the 
transaction  more  binding. 

An  infant  cannot  bind  himself  by  cognovit.  "  We  come 
to  this  conclusion,"  said  Lord  Abinger,  '•'  on  three  grounds, 
each  of  which  is  fatal  to  the  validity  of  the  cognovit.  First, 
it  is  bad  because  it  falls  within  the  principle  which  prevents 
an  infant  from  appointing  and  appearing  in  court  by  attorney; 
he  can  appear  by  guardian  only.  Secondly,  by  this  means  the 
minor  is  made  to  state  an  account,  which  the  law  will  not  al- 
low him  to  do,  so  as  to  bind  himself ;  if  an  action  be  brought 
against  him,  the  jury  are  to  determine  the  reasonableness  of 
the  demand  made.  Thirdly,  the  general  principle  of  law  is, 
that  a  minor  is  not  to  be  allowed  to  do  anything  to  prejudice 
himself  or  his  rights.'^  " 

§  407.  Same  Subject ;  Miscellaneous  Acts  and  Contracts  Void- 
able and  not  Void. —  An  infant  may  in  some  States  avoid  his 
usurious  contracts,  and  recover  the  money  so  lent  under  the 
count  for  money  had  and  received. ^  But  the  policy  of  usury 
is  becoming  abandoned  in  many  parts  of  the  country. 

An  infant  may  avoid  his  release  of  damages  for  an  injury 
or  an  award  upon  a  submission  entered  into  by  him.  But  if, 
upon  trial,  the  jury  shall  find  such  damages  to  have  been 
satisfied  by  an  adequate  compensation,  the  infant  shall  recover 
nominal  damages  only.^     The  rule  is  general  that  an  infant 

1  Met.  Contr.  42.     And  see  Powell  grounds  is  not  now  tenahle.     See  Wil- 

r.  Gott,  1.3  Mo.  458.  liams  v.  Moor,  11  M.  &  W.  256. 

^  Oliver  v.  Woodroffe,  4  M.  &  W.  8  Millard  v.  Hewlett,  10  Wend.  301. 

653  (1839).    But  the  second  of  these         *  Baker  v.  Lovett,  6  Mass.  78. 
37  577 


§  407  THE   DOMESTIC   RELATIONS.  [PAUT   V. 

is  not  bound  by  his  agreement  to  refer  a  dispute  to  arbitra- 
tion ;  nor  by  an  award,  even  in  his  own  favor ;  though  this 
is  usually  voidable  only.^ 

Among  the  acts  of  tlie  infants  which  are  in  the  later  cases 
regarded  as  voidable  and  not  void  are  the  following :  His 
appeal  from  a  justice's  decision.^  Judgments  against  him.^ 
His  covenant  to  carry  and  deliver  money."*  His  chattel 
mortgage.^  His  agreement  to  convey.^  And,  in  short,  deeds 
and  instruments  under  seal,  with  perhaps  the  exception  of 
powers  of  attorney ;  though  it  is  otherwise,  perliaps,  if  tlie 
instrument  should  manifestly  appear  on  the  face  of  it  to  be 
fraudulent  or  otherwise  to  the  prejudice  of  the  infant;  "and 
this,"  says  Judge  Story,  "  upon  the  nature  and  solemnity,  as 
well  as  the  operation  of  the  instrument."  '  In  Massachusetts, 
a  contract  of  charter  to  an  infant,  though  by  parol,  is  void- 
able and  not  void.^  So,  too,  an  infant's  promise  to  pay 
money  borrowed  on  joint  account  with  another.^  And,  in 
various  instances  a  familj'  arrangement  as  to  settlement  of  an 
estate  in  which  the  minor  is  interested. ^^  In  so  many  cases  of 
the  character  discussed  in  this  chapter  the  infant  at  the  proper 
time  is  presented  as  seeking  and  being  permitted  to  set  aside 
the  transaction,  that  the  voidable  rather  than  void  nature  of  the 
transaction  is  assumed,  and  the  decision  is  more  to  the  point 
that,  void  or  voidable,  it  does  not  under  the  circumstances 
bind  him. 

It  has  been  repeatedly  decided  in  England  that  where  an 
infant  becomes  the  holder  of  shares  by  his  own  contract  and 

1  Watson  on   Awards,  ch.  3,  §    1 ;  «  Carrell  v.  Potter,  23  Mich.  377. 
Smith  Contr.  280 ;  Britton  i>.  Williams,  •  Per   Story,   J.,   Tucker  i>.   More- 
6  Munf.   453  ;    Barnaby  v.  Barnaby,  1  land,    10   Pet.    71 ;  2  Kent  Com.  236, 
Pick.  221.     See  Guardian  and  Ward,  11th  ed.,  n.,  and  cases  cited.     And  see 
supra.  Regina  c  Lord,  12  Q.  B.  757. 

2  Bobbins  v.  Cutler,  6  Post.  173.  8  Thompson  v.  Hamilton,  12  Pick. 

3  Trapnall  v.  State  Bank,   18  Ark.  425. 

53;  Kemp  v.  Cook,  18  Md.  130;  Bickel  »  Kennedy  v.  Doyle,  10  Allen,  161. 

r.  Erskine,   43  Iowa,  213;   Wheeler  y..  So,  too,  a  purported  g^t  to  an  infant 

Ahrenbeak,  54  Tex.  535 ;  Walkenhorst  of  a   contract   of    purchase   involving 

w.  Lewis,  24  Kan.  420.     See  c.  6,  post.  pecuniary     obligation.      Armitage     v. 

«  West  V.  Penny,  16  Ala.  186.  Widoe,  36  IMich.  124. 

5  Miller   V.    Smith,   26   Minn.    248;  1°  Turpin  ;;.  Turpin,  16  Ohio  St.  270; 

Corey  v.  Burton,  32  Mich.  30.  Jones  v.  Jones,  46  Iowa,  466. 

678 


CHAP.  II.]  ACTS   VOID    AND    VOIDABLE.  §  408 

subscription  he  is  prima  facie  liable  to  pay  calls  or  assess- 
ments ;  but  he  may  repudiate  that  contract  and  subscription  ; 
and  if  he  does  so  while  an  infant,  although  he  may  on  arriv- 
ing at  full  age  affirm  his  repudiation,  or  receive  the  profits, 
it  is  for  those  who  insist  on  this  liability  to  make  out  the 
facts.i  A  minor's  contract  for  stock  is  doubtless  voidable  in 
this  conntr}'.^ 

An  absolute  gift  of  articles  of  personal  property  made  by 
an  infant  can  be  revoked  or  avoided  by  him.^  And  tlie  exe- 
cuted contract  of  an  infant  follows  the  same  rule  as  an  execu- 
tory one;  he  may  rescind  the  one  as  well  as  the  other;  the 
more  so,  where  the  other  party  can  be  put  substantially  in 
statu  quo^  But  if  before  rescission  the  adult  make  a  bona 
fide  sale  of  property  purchased  of  the  minor,  trover  will  not 
lie  against  him.^  And  it  is  held,  on  the  ground  of  an  exe- 
cuted agency,  that  money  belonging  to  an  infant  soldier  and 
received  from  him  by  his  brother,  with  authority  to  use  it  for 
the  support  of  their  needy  parents,  and  so  used  by  the  brother, 
cannot  be  recovered  by  the  infant  upon  reaching  majority.'' 
But,  in  general,  an  infant  soldier's  gift  of  his  bounty  and  pay, 
even  to  his  own  father,  is  treated  as  voidable  and  revocable.'^ 

§  408.  Infant's  Trading  and  Partnership  Contracts.  —  The 
rule  is  a  general  one  that  an  infant  cannot  trade,  and  conse- 
quently cannot  bind  himself  by  any  contract  having  relation 
to  trade.  "  We  know%  by  constant  experience,"  says  Mr. 
Smith,  "  that  infants  do,  in  fact,  trade,  and  trade  sometimes 
very  extensively.  However,  there  exists  a  conclusive  pre- 
sumption of  law  that  no  infant  under  the  age  of  twenty-one 
has  discretion  enough  for  that  purpose."  ^     In  Dilk  v.  Keigh- 

1  Smith  Contr.  285  ;  Newry  &Ennis-  his  deed  of  gift  to  a  trustee.  Slaugh- 
kiilen  R.  R.  Co.  v.  Coombe,    3  Exch.     ter  v.  Cunningham,  24  Ala.  260. 

565;  London  &  Northwestern  R.  R.  Co.  *  Hill  v.  Anderson,  5  S.   &  M.  216; 

V.  iM'Michael,  5  E.xch.  114.     See,  as  to  Robinson  v.  Weeks,  56  Me.  102. 

the  liability  of  a  stockjobber  in  such  5  Caxr  v.  Clough,  6  Fost.  280 ;  Riley 

cases,   Brown   v.  Black,  L.  R.   8   Ch.  v.  Mallory,  33  Conn.  201. 

930;   Merry  v.  Nickalls,  L.  R.  7   Ch.  ^  Welch;;.  Welch,  103  Mass.  562. 

733.  7  Holt  V.  Holt,  59  Me.  464;  supra, 

2  Indianapolis  Chair  Co.  v.  Wilcox,  §  252. 

59  Ind.  129  ;  97  Penn.  St.  202.  «  Smith  Contr.  278.     See  Whywall 

3  Person  u.  Chase,  37  Vt.  647;  Ox-  r.  Champion,  2  Stra.  1083;  Dilk  v. 
ley  V.  Tryon,  25  Iowa,  95.     So,  too,     Keighley,  2  Esp.  480. 

679 


§  408  THE   DOMESTIC    RELATIONS.  [PART   V. 

ley^  the  infant  was  a  glazier,  and  the  person  who  sued  him 
sought  to  make  out  that  the  goods  furnished  were  in  the 
nature  of  necessaries,  to  enable  the  infant  to  earn  a  liveli- 
hood ;  but  this  plea  did  not  avail. ^  And  an  infant,  rescind- 
ing a  trading  contract  with  another,  was  allowed  to  recover 
back,  ill  an  action  for  money  had  and  received,  a  sum  which 
he  had  paid  towards  the  purchase  of  a  share  in  the  defend- 
ant's trade,  if  without  consideration  and  he  had  actually 
derived  no  benefit  or  profit  from  the  business.^  So,  too,  as 
an  infant  cannot  trade,  he  cannot  become  a  bankrupt,  and  a 
fiat  against  him  is  void.^ 

Yet,  even  in  trading  contracts  it  must  not  be  forgotten  that 
the  current  of  modern  decisions  is  to  make  the  transactions  of 
an  infant  voidable  and  not  void.  The  English  case  of  Croode 
V.  Harrison  is  exactly  in  point ;  where  a  person  was  held 
liable  for  goods  supplied  him  as  one  of  a  partnership,  on  the 
ground  that  the  contract  was  voidable,  not  void,  and  that 
when  the  infant  became  of  age  he  had  substantially  ratified 
his  former  act.  "  It  is  clear,"  says  Justice  Bayley,  "  that  an 
infant  may  be  in  partnership.  It  is  true  that  he  is  not  liable 
for  contracts  entered  into  during  his  infancy;  but  still  he 
may  be  a  partner.  If  he  is,  in  point  of  fact,  a  partner  during 
his  infancy,  he  may,  when  he  comes  of  age,  elect  whether  he 
will  continue  that  partnership  or  not.  If  he  continue  the 
partnerslnp  he  will  then  be  liable  as  a  partner."*  Nor  is 
another  principle  to  be  lost  sight  of  in  trading  contracts  ; 
namely,  that  fraudulent  representations  and  acts,  though 
made  by  an  infant,  may  sometimes  make  his  contract  binding 
upon  hini,  or  at  least  afford  a  means  of  holding  him  answer- 
able for  the  transaction  ;  but  of  this  hereafter. 

In  tliis  country,  it  is  likewise  admitted  that,  in  point  of 
fact,  infants  do  sometimes  trade  ;  ^  but  that,  nevertheless, 
their  trading   contracts  do  not  absolutely  bind   them,  being 

1  Dilk  V.  Keigliley,  2  Esp.  480.  Wilson,  5  Q.  B.  D.  28.     And  see  Win- 

2  Corpe  V.  Overton,  10  Bing.  252  ;  Chester  v.  Thayer,  120  Mass.  129. 
Holmes  r.  Blogg,  8  Taunt.  508.     See         *  5    B.    &    Aid.    147.     See    Smith 
next  chapter.  Contr.  283. 

3  Smith  Contr.  282,  and  cases  cited  ;  =  Whitney  v.  Dutch,  14  Mass.  457  ; 
Belton  y.  Hodges,  9  Bing.  305 ;   Rex  u.  Houston     v.    Cooper,    Penning.    865; 

680 


CHAP.  II.]  ACTS    VOID    AND    VOIDABLE.  §  409 

voidable  at  their  option  and  not  absolutely  void.i  An  in- 
fant's partnership  agreement,  too,  is  not  void,  but  voidable.'-^ 
And  it  is  lield  in  Massachusetts,  that  an  infant  cannot  be 
compelled  to  pay  for  grain  furnished  for  horses  owned  by  a 
firm  of  which  he  was  a  member,  though  the  horses  were 
employed  in  the  usual  business  of  the  firm,  and  though  he 
was  emancipated  by  his  father.  But  we  understand  the 
principle  of  that  decision  to  accord  with  the  English  doctrine  ; 
wliicli  doctrine  does  not  appear  too  far  extended  in  South 
Carolina,  where  it  was  once  expressly  decided  that  a  person's 
express  or  implied  ratification  of  the  partnership  upon  reach- 
ing majority  makes  him  liable  for  a  debt  of  the  firm  contracted 
during  his  infancy,  although  he  was  ignorant  of  the  existence 
of  the  debt  at  the  time  of  such  ratification,  and  had,  on  being 
informed  of  it,  refused  to  pay  for  it.^  For  the  principle  thus 
indicated  is,  that  to  affirm  a  partnership  contract  on  reaching 
majority,  and  continuing  to  receive  its  benefits,  is  to  affirm 
it  with  its  usual  inseparable  incidents.  Certainl}^,  the  infant 
member  of  a  firm  should  not  be  permitted  to  derive  undue 
advantages  over  his  partner.'^ 

§  409.  Void  and  Voidable  Acts  contrasted ;  When  may  Void- 
able Acts  be  affirmed  or  disaffirmed.  —  What,  then,  is  the  dif- 
ference between  the  void  and  the  voidable  contracts  of  an  in- 
fant? Simply  this  :  that  the  void  contract  is  a  mere  nullitj^  of 
which  any  one  can  take  advantage,  and  which  is,  in  legal  esti- 
mation, incapable  of  being  ratified  ;  while  a  voidable  contract 
becomes  at  the  option  of  the  infant,  though  not  otherwise, 
binding  u]3on  himself  and  all  concerned  with  him.^  Acts  or 
circumstances,  then,  which   amount   to  a  legal   ratification, 

Kitchen  v.  Lee,  11  Paige,   107  ;  Beller         *  See  Kitclien  u.  Lee,  11  Paige,  107; 

V.  Marcliant,  30  Iowa,  350.  Dunton  v.  Brown,  31  Mich.  182.     But 

1  Mason   v.  Wright,    13  Met.  306;  see    Minock   v.    Sliortridge,   21    Mich. 

Kinnen  i.\  Maxwell,  06  N.  C.  45.  304,  where  an  infant  refused,  on  major- 

-  Jaques  v.  Sax,  39  Iowa,  307  ;  Dun-  ity,  after  the  goods   had  heen  dis[)osed 

ton  V.  Brown,  31  Midi.  182.     Tliat  the  of  and  the  partnersliip  closed,  to  pay 

minor   had  an  interest  in   profits,  but  the  partnership  note,  though  recogniz- 

bad  not  put  in  capital,  does  not  oper-  ing    the    partnership    in    some    other 

ate  to  discharge   iiim   from    liability,  respects. 

Jaques  v.  Sax,  39  Iowa,  367.    See,  as  to         ^  g^g   Met.  Contr.   41 ;    Story  Eq. 

pleadings,  Kine  v.  Barbour,  70  Ind.  35.  Juris.  §  241. 

3  Miller  v.  Sims,  2  Hill  (S.  C),  479. 

681 


§  409  THE   DOMESTIC   RELATIONS .  [PART   V. 

servG  to  make  the  voidable  contract  of  an  infant  completely 
Ijinding  and  peipetuall}^  effectual  ;  and  this  period  of  ratifica- 
tion is  to  be  usually  referred  to  the  date  when  the  disability 
of  infanc}'  ceases,  and  he  becomes  of  full  age,  —  though  not 
always.  What  amounts  to  a  legal  ratification,  under  such 
circumstances,  we  shall  show  in  a  subsequent  chaj)ter.  On 
the  other  hand,  acts  or  circumstances  which  at  the  proper 
time  amount  to  disaffirmance  will  render  the  infant's  voidable 
contract  of  no  effect. 

An  infant's  voidable  conveyance  of  land,  which  is  a  sol- 
emn instrument,  and  perhaps  his  deeds  generally,  cannot  be 
avoided  or  confirmed  during  his  minority.^  But  as  to  many 
otlier  transactions  it  is  different,  particularly  where  the  con- 
tract relates  to  personal  property,  or  is  an  executory  one, 
to  perform  services,  for  instance.  And  the  American  cases 
seem  to  establish  clearly  the  doctrine  that  an  infant's  sale  or 
exchange  of  personal  propert}^  or  contract  for  such  sale  or  ex- 
change, may  be  rescinded  by  him  at  any  time  during  minorit}'; 
and  when  the  transaction  is  thus  avoided,  the  title  to  the 
property  revests  in  the  infant.^  This  distinction  ap})ears  to 
be  recognized  out  of  regard  to  the  infant's  benefit ;  since  land 
might  be  recovered  after  long  lapse  of  time  upon  disturbing 
the  possessor's  title,  while  personal  j)roperty  would  often  be 
utterly  lost  if  one  could  not  trace  out  and  recover  it  until 
lie  became  of  age.  To  repudiate  one's  general  contract  while 
yet  an  infant,  so  as  to  gain  an  unfair  advantage,  is  not  usually 
permitted ;    but  the  court  requires  his  decision  to  be  post- 


1  Zoucli  V.  Parsons,  3  Burr.  1704;  mnn  v.  Hnrton,  17  Conn.  481;  Kitchen 
McCormie  v.  Lesmett,  8  Jones,  425;  w.  Lee,  11  Paifre,  107;  Willis  t'.  Twoin- 
Bool  V.  Mix,  17  Wenfl.  119;  Emmons  l)iy,13  Mass.204:  Carrr.  Clougli.GFost. 
V.  Miirraj-,  16  N.  H.  .385;  Ciimmings  y.  280;  Monumental  Building  Association 
Powell,  8  Tex.  80;  Sims  v.  Everhardt,  v.  Herman,  oo  Mil.  128;  Kilej  v.  Mal- 
102  U.  S.  Supr.  mO]  Pliillips  v.  Green,  lory,  .33  Conn.  201  ;  Briggs  i:  McCabe, 
A.  K.  Marsh.  87  ;  Tillinghast  v.  Hoi-  27  Ind.  327.  An  infant's  contract  for 
brook,  7  R.  I.  230.  So  his  chattel  purchasing  stock  may  be  avoided  or  go 
mortgage  cannot  be  made  binding  to  unfulfilled  during  minorit}'.  Indian- 
his  prejudice  by  any  act  of  affirmance  apolis  Chair  Co.  v.  Wilcox,  59  Ind.  429. 
during  minority.  Corey  v.  Burton,  32  So  his  contract  to  marry,  or  to  perform 
Mich.  .30.  labor  for  a  specified  time,  as  seen  in 

2  Grace  v.  Hale,  2  Humph.  27  ;  Ship-  chapters  3,  5,  post. 

682 


CHAP.  III.]       ACTS    BINDING    UPON    THE   INFANT.  §  411 

polled  to  mature  age.^     An  infant's  void  conveyance  lie  may 
have  set  aside  at  any  time  during  infancy .^ 


CHAPTER   III. 

ACTS   BINDING   UPON  THE   INFANT. 

§410.  General  Principle  of  Binding  Acts  and  Contracts. — 
We  have  seen  that  the  general  contracts  of  infants  are  either 
void- or  voidable,  and  that  the  tendency  at  this  day  is  to  treat 
them  as  voidable  onl}'.  Bat  keeping  in  view  the  principle 
tliat  an  infant's  beneficial  interests  are  to  be  judicially  pro- 
tected, we  shall  find  that  there  are  some  contracts  which  he 
ought  to  be  able  for  his  own  good  to  make  ;  some  contracts 
of  which  it  may  be  said  that  the  privilege  of  standing  upon 
a  clear  footing  is  worth  more  to  him  than  the  privilege  of 
repudiation.  Some  such  contracts  there  are,  recognized  as 
exceptions  to  the  general  rule  ;  these  are  neither  void  nor 
voidable,  but  are  obligatory  from  the  outset,  and  thus  neither 
require  nor  admit  of  ratification  on  the  infant's  part.^ 

§  4n..  Contracts  for  Necessaries ;  What  are  such  for  Infants. 
—  The  most  important  of  this  class  of  contracts  are  those  for 
necessaries  ;  which  in  fact  are  so  important  that  they  are 
often  mentioned  as  the  only  exception  to  the  rule  of  void  and 
voidable  contracts.  The  general  signification  of  the  word 
"  necessaries  "  has  already  been  discussed  with  reference  to 
married  women  ;  but  it  is  readily  perceived  that  Avhat  are 
necessaries  for  a  wife  may  not  be  equally  necessaries  for  a 
child,  and  what  are  necessaries  for  young  children  may  not 
be  equally  necessaries  for  those  who  have  nearly  reached 
majority.  Tlie  leading  principles  of  the  doctrine  of  neces- 
saries being  made  clear,  and  a  rule  of  legal  classification 

1  Diinton  V.  Brown,  81  Mich.  182.         as   to   disaffirmance   during   minority. 
'^  Swafford  v.  Ferguson,  3  Lea,  292.     I\Iurphy  v.  Julinson,  -15  Iowa,  57. 
A  statute  provision  is  sometimes  found  ^  g^,g  Met.  Contr.  64;  Smith  Contr. 

268  et  seq. 

583 


§  411  THE   DOMESTIC   RELATIONS.  [PAET    V. 

judicially  announced,  any  man  of  ordinary  intelligence  knows 
how  to  apply  it;  and  yet  juries  will  not  and  cannot  always 
agree  in  their  conclusions  on  this  point,  every  one  having 
some  preconceived  notions  of  his  own  on  topics  so  constantly 
occurring  in  our  every-day  life,  and  to  so  great  an  extent  in- 
volving individual  tastes  and  preferences.  Plainly,  it  is 
wrong  to  prevent  an,  infant  from  attaining  ohjects  not  only 
not  detrimental,  but  of  the  utmost  advantage,  to  him  ;  "since," 
as  it  has  been  observed,  "  otherwise  he  might  be  unable  to  ob- 
tain food,  clothes,  or  education,  though  certain  to  possess  at  no 
ver}^  distant  period  the  means  of  amply  paying  for  them  all."  ^ 

Food,  lodging,  clothes,  medical  attendance,  and  education, 
to  use  concise  words,  constitute  the  five  leading  elements  in 
the  doctrine  of  the  infant's  necessaries.  But,  to  apply  a 
practical  legal  test,  we  must  construe  these  five  words  in  a 
very  liberal  sense,  and  somewhat  according  to  tlie  social 
position,  fortune,  prospects,  age,  circumstances,  and  general 
situation  of  the  infant  himself.  "  It  is  well  established  by  the 
decisions,"  says  one  writer,  "  that  under  the  denomination 
necessaries  fall  not  only  the  food,  clothes,  and  lodging  neces- 
sary to  the  actual  support  of  life,  but  likewise  means  of  edu- 
cation suitable  to  the  infant's  degree;  and  all  those  accom- 
modations, conveniences,  and  even  matters  of  taste,^ which 
the  usages  of  society  for  the  time  being  render  proper  and 
conformable  to  a  person  in  the  rank  in  which  the  infant 
moves."  2  Says  another :  "  The  word  necessaries  is  a  rela- 
tive term,  and  not  confined  to  such  things  as  are  positively 
required  for  mere  personal  support."^  The  language  of  an 
American  judge  is  this:  "It  would  be  difficult  to  lay  down 
any  general  rule  upon  this  subject,  and  to  say  what  would 
or  would  not  be  necessaries.  It  is  a  flexible,  and  not  an 
absolute  term."^ 

Articles  of  mere  ornament  are  not  necessaries.  The  true 
rule  is  taken  to  be  that  all  such  articles  as  are  purely  orna- 

1  Smitli  Contr.  269.  *  Breed  v.  Judd,  1  Gray,  458,  per 

2  //;.  2<)9.  Thomas,  J. 

3  Met.  Contr.  G9.     And  see  Peters  y. 
rieming,  6  M.  &  W.  42. 

684 


CHAP.  III.]       ACTS    BINDING   UPON   THE   INFANT.  §  411 

mental  are  not  necessary,  and  are  to  be  rejected,  because  they 
cannot  be  requisite  for  any  one ;  and  for  such  matters  there- 
fore an  infant  cannot  be  made  responsible.  But  if  tliey  were 
not  of  this  description,  then  the  question  arises  whether  they 
were  bouglit  for  the  necessary  use  of  the  party,  in  order  to 
support  himself  properly  in  tlie  degree,  state,  and  station  of 
life  in  which  he  moved;  if  they  were,  for  such  articles  the 
infant  may  be  made  responsible.^  The  result  of  the  cases  on 
both  sides  of  the  Atlantic  seems  to  be  that  unless  the  articles 
are,  both  as  to  quality  and  quantity,  such  as  must  be  neces- 
saries to  any  one,  the  burden  of  proof  lies  on  the  plaintiff  to 
show  such  a  condition  of  life  of  the  defendant  as  might  raise 
to  the  rank  of  necessaries  things  which  would  otherwise  be 
considered  luxuries.^ 

In  England,  a  pair  of  solitaires  (or  shirt  fasteners),  worth 
=£25,  are  not,  it  would  appear,  necessaries  for  any  infant.^ 
But  it  seems  that  presents  to  a  bride,  when  she  becomes  the 
defendant's  wife,  may  be  necessaries.^  Betting-books  are  not 
an  infant's  necessaries.^  Nor  tobacco,  though  for  a  minor 
soldier.^  Nor  money  paid  to  relieve  an  infant  from  draft  for 
military  duty.'  Horses,  saddles,  harness,  and  carriages  may 
be  necessaries  under  some  circumstances  ;  but  not  ordinarily  ; 
and  this  is  the  better  doctrine,  English  and  American.^ 
Wedding  garments  for  an  infant  who  marries  are,  within 
reasonable  limits,  necessaries.^  But  not  the  treats  of  an 
undergraduate  at  college.^*'  Nor,  in  Arkansas,  as  it  appears, 
kid  gloves,  cologne,  silk  cravats,  and  walking-canes.  ^^     The 

^  Per  Parke,  B.,  Peters  v.  Fleming,  ^  Bryant  v.  Ricliarclson,  L.  E.  3  Ex. 

6  M.  &  W.  42.  93,  n. 

=2  Smith    Contr.    272,  5th  Am.  ed.,  ?  Dorrell  v.  Hastings,  28  Ind.  478. 

Rawle's  ».,  and  cases  cited;  Harrison  ^  Harrison  v.  Fane,  1    Man.   &  Gr. 

V.  Fane,  1  Man.  &  Gr.  550;  Wliarton  550;    Grace   v.    Hale,   2    Iluinpli.   G7  ; 

V.  Mackenzie,  5  Q.  B.  606;  Rnndel  v.  Aaron  v.  Harley,  6  Rich.  26;  Merriam 

Keeler,  7  Watts,  239  ;  Bent  v.  Manning,  v.  Cunningham,  11  Cusli.  40  ;  Beeler  v. 

10  Vt.  225 :  Merriam  v.  Cunningliam,  11  Young,  1  Bibb,  519  ;  Owens  v.  Walker, 

Gush.  40.  2  Strobh.  Eq.  289. 

3  Ryder  y.  Wombwell,  L.  R.4Exch.  ^  Sams   v.    Stockton,   14   B.  Monr. 

32.       '  232. 

*  Genner  i-v  Walker,  19  Law  Times,  ^'^  "Wharton   v.   Mackenzie,   5  Q.   B. 

N.  s.  398 ;  3  Am.  Law  Rev.  590.  606;  Brooker  v.  Scott,  11  :\I.  &  W.  67. 

5  lb.  11  Lefils  V.  Suga,  15  Ark.  137. 

585 


§  412  THE   DOMESTIC   RELATIONS.  [PART   V. 

uniform  of  an  officer's  servant  is  adjudged  a  necessary  ;  but 
not  cockades  for  his  company.^  An  insurance  contract  is 
not  a  necessary .2  But  a  solicitor's  bill  for  preparing  a  mar- 
riage settlement  may  be.^  Those  who  incline  to  pursue  the 
subject  still  farther  will  find  some  interesting  decisions  as  to 
balls,  serenades,  suits  of  satin  and  velvet,  and  doublets  of 
fustian,  among  the  ancient  cases  which  have  survived  the 
fashions  they  describe.* 

§412.  Contracts  for  Necessaries  ;  Subject  continued.  —  It  is 
usual  to  leave  the  question  of  necessaries  in  each  case  to  the 
jury,  without  very  positive  directions.  But  the  dividing  line 
betvv'een  court  and  jury  is  not  in  this  respect  clearly  marked, 
as  the  latest  cases  teach  us.  Rijder  v.  Wombivell  lays  it  down 
that  the  question  whether  articles  are  necessaries  is  one  of 
fact,  but,  like  other  questions  of  fact,  should  not  be  left  to 
the  jury  unless  there  is  evidence  on  which  they  could  reason- 
ably find  that  they  were.^  The  immediate  object  of  this 
decision  was  to  set  aside  a  verdict  deemed  improper ;  as  to 
the  fitness  of  such  a  rule  in  its  broader  application  there  is 
considerable  doubt.^  But  it  has  frequently  been  said,  that 
in  a  very  clear  case  a  judge  would  be  warranted  in  directing 
a  jury  authoritatively  that  some  articles,  like  diamonds  and 
race-horses,  would  not  be  necessaries  for  any  minor.'' 

The  propriety  of  classing  education  as  among  the  neces- 
saries of  an  infant  rests  rather  upon  respectable  dicta  than 

1  Hands  v.  Slaney,  8  T.  R.  578  ;  really  cannot  understand  it,  unless  it 
Coates  V.  Wilson,  5  Esp.  52.  means  tliat  it  is  to   be  a   question  of 

2  New  Hampsliire  Ins.  Co.  v.  Noyes,  law  for  the  judge  to  determine  wlietlier 
.32  N.  H.  345.  See  Harrison  v.  Fane,  1  tlie  articles  disputed  are,  or  are  not, 
Man.  &  Gr.  550;  Davis  v.  Caldwell,  12  necessaries.  If  that  is  to  be  taken  to 
Cusli.  512;  Bent  r.  Manning,  10  Vt.  be  law,  of  course  I  must  act  upon  it; 
225;  Stanton  v.  Willson,  3  Day,  37;  but  I  should  certainly  have  preferred 
Glover  u.  Ott,  1  M'Cord,  572;  Rundel  tlie  law  as  it  was  previously  understood 
V.  Keeh?r,  7  Watts,  2.39.  to  be,  that  it  was  for  the  jury  to  say 

3  Helps  V.  Clayton,  17  C.  B.  n.  s.  what  articles  were  reasonably  neces- 
553.  sary  with  reference  to  the  position  of 

*  See   cases   cited   Met.    Contr.  69,  the  defendant,  the  infant."     Genner  v. 

70  ;  Cro.  Eliz  583.  Walker,  19  Law  Times,  n.  s.  398. 

5  Ryder  y.  Wombwell,  L.  R.  4Exch.  '  See  Harrison  v.  Fane,  Davis  v. 
32.  Caldwell,     and     other     eases,    supra; 

6  Of  this  rule,  soys  Cockburn,  C.  J.,  Moliney  v.  Evans,  51  Penn.  St.  80. 
of  the  Queen's  Bench,  still  later :  "  I 

586 


CHAP.  III.]       ACTS    BINDING   UPON   THE    INFANT.  §  412 

precedents.  Lord  Coke  includes  among  necessaries  for  which 
an  infant  may  bind  himself  by  contract,  "good  teaching  and 
instruction,  whereby  he  may  profit  himself  afterwards  ;  "  and 
the  doctrine  within  strict  limits  is  undoubtedly  coricct.^  In 
Vermont  it  is  decided  tliat  a  collegiate  education  is  not  to 
be  ranked  among  those  necessaries  for  which  an  infant  can 
render  himself  absolutely  liable.^  But  the  court  seems  to 
make  this  but  a  prima  facie  rule,  and  to  admit  tliat  extra- 
neous circumstances  might  be  shown  to  make  even  this  a 
necessarj^ ;  while  a  good  common-school  education  is  strongly 
pronounced  to  be  such.  And  the  judge  adds:  "  I  would  not 
be  understood  as  making  any  allusion  to  professional  studies, 
or  to  the  education  and  training  which  is  requisite  to  the 
knowledge  and  practice  of  mechanic  arts.  These  partake  of 
the  nature  of  apprenticeships,  and  stand  on  peculiar  grounds 
of  reason  and  policy.  I  speak  only  of  the  regular  and  full 
course  of  collegiate  study."  ^ 

An  infant  is  not  liable,  at  common  law,  for  the  expense  of 
repairing  his  dwelling-house  on  a  contract  made  by  him  or 
his  guardian  or  parent  for  that  purpose ;  although  such  re- 
pairs were  necessary'-  for  the  prevention  of  immediate  and 
serious  injury  to  the  house.^  So  timber  furnished  to  an 
infant  for  building  on  his  own  land  is  not  a  necessary.^  The 
law  is  extremely  reluctant  to  permit  an  infant's  real  estate  to 
be  encumbered  in  any  possible  way. 

So  it  is  ruled  that  the  services  and  expenses  of  counsel  in  a 
suit  brought  to  protect  the  infant's  title  to  his  real  estate 
cannot  for  similar  reasons  be  charged  against  the  infant  on 
his  own  contract.*^  But  the  doctrine  that  legal  expenses  can- 
not be  charged  as  necessaries  for  an  infant  appears  not  to 
prevail  in  Connecticut ;  and  the  more  liberal  rule  is  asserted, 
that  in  cases  where,  under  peculiar  circumstances,  a  civil  suit 
is  the  only  means  by  wliich  an  infant  can  procure  the  abso- 

1  Co.   Litt.    172;   1  Sid.  112;  Met.  West  y.  Greo;?,  1  Grant,  53;  Wallis  t-. 

Contr.  60,  n. ;  Smith  Contr.  269,  273.  Bardweli,  126  Mass.  366 ;  Price  v.  San 

-  Miildlebury   College  v.  Chandler,  ders,  60  Ind.  310. 
16  Vt.  683.  ^  Freeman  v.  Bridger,  4  Jones  Law, 

^  Per  Royce,  J.,  ih.  1. 

*  Tupper  V.  Caldwell,  12  Met.  659;         «  Phelps  v.  Worcester,  11  N.  H.  51. 

587 


§  412  THE   DOMESTIC   DELATIONS.  [PART   V. 

lute  necessaries  which  he  requires,  power  cannot  be  denied 
him  to  make  the  necessary  contracts  for  its  commencement 
and  prosecution  ;  for  it  would  be  a  reproach  to  the  hiw  to 
hold  otherwise.^  In  this  particular  case  the  circinnstances 
justifying'  relief  were  very  strong.  Moreover,  the  English 
cases  long  ago  established  that  money  advanced  to  an  infant 
to  procure  him  liberation  from  arrest,  where  he  was  in  execu- 
tion or  taken  in  custody  on  a  debt  for  necessaries,  could  be 
recovered  as  necessaries.^  Services  of  an  attorney  in  defend- 
ing the  infant  against  a  criminal  complaint  may  likewise  be 
recovered.^  And  we  have  already  seen  that  legal  expenses 
may  sometimes  be  classed  as  necessaries  for  married  women.* 
On  the  whole,  it  may  be  said  that  legal  expenses  on  behalf  of 
a  minor  may  or  may  not  be  regarded  as  a  necessary  for  him, 
according  to  circumstances  and  the  reasonableness  of  incur- 
ring them.  And  it  would  appear  that  the  burden  of  proof  is 
upon  an  attorney  to  show  that  the  suit  could  be  viewed  in 
such  a  light,  so  as  to  entitle  him  to  recover  for  his  fees  and 
disbursements.^  Generally,  a  guardian  or  next  friend  would 
assume  the  responsibility  of  employing  counsel  for  advice  or 
suits  on  an  infant's  behalf.  A  court  of  equity  will  enforce 
against  an  infant  an  agreement  settling  a  suit  made  by  his 
guardian,  when  it  appears  to  have  been  made  for  the  infant's 
benefit.*^ 

The  doctrine  of  necessaries  is  manifestly  not  to  be  extended 
to  an  infant's  trading  contracts,  as  we  have  alreadj^  intimat- 
ed. Thus  the  board  of  four  horses  for  six  months,  the  prin- 
cipal use  of  which  was  in  the  business  of  a  hackman,  is  not 
within  the  class  of  necessaries  for  which  an  infant  is  liable, 
although  the  horses  are  occasionally  used  to  carry  his  family 
out  to  ride.'  The  board  of  an  infant,  again,  is  included  among 
the  necessaries   for  which  he  may  pledge  his    credit.^     But 

1  ^lunson  i-.Wasl)band,31  Conn.  303.  And  so  wliere  there  is  no  guardian,  and 

2  Clarke  v.  Leslie,  5  Esp.  28;  2  the  counsers  services  contributed  to 
Eden,  72.  secure  tlie  estate  to  the  infant.     Epper- 

3  Bari<er  v.  Plibbard,  54  N.  II.  539.  son  v.  Nugent,  57  Miss.  45. 

*  Siiprn.  p.  93.  ''  Merriam  i:  Cunningham,  llCush. 

5  Thrall  r.  Wright,  38  Vt.  494.  40;  supra,  §  408. 

6  In  re  Livingston,   34   N.  Y.  555.         »  Bradley  v.  Pratt,  23  Vt.  378. 

588 


CHAP.  III.]      ACTS    BINDING   UPON   THE  INFANT.  §  413 

here,  too,  we  must  keep  within  our  principle.  Thus  where 
an  infant  took  a  house  to  carry  on  the  business  of  a  barber; 
the  house  containing  five  rooms,  two  on  the  ground  floor,  one 
of  which  he  occupied  as  a  shop,  the  other  to  reside  in,  and 
three  above,  which  he  underlet;  he  was  held  not  to  be  liable 
for  the  rent.^  An  infant  may  contract  for  his  necessary 
lodging,  but  he  cannot  bind  himself  for  more. 

§  413.  Contracts  for  Necessaries  ;  Same  Subject.  —  But  the 
question  in  all  such  cases  is  one  of  mixed  law  and  fact.  And 
avticles  prima  facie  to  be  classed  as  luxuries,  such  as  wines, 
fruits,  and  the  use  of  a  horse  and  carriage,  might,  under  some 
circumstances,  become  necessaries  ;  as  if,  for  instance,  med- 
ically prescribed,  for  an  infant's  health ;  though  this  salu- 
tary rule  is  not  designed  to  support  a  quibble.^  The  infant's 
clothes  may  be  fine  or  coarse,  according  to  his  rank  ;  his  edu- 
cation may  vary  according  to  the  station  he  is  to  fill,  and  the 
extent  of  his  probable  means  when  of  age  ;  and  as  to  ser- 
vants, attendance,  and  the  like,  this  will  depend  on  bis  social 
position. 3  Stock  purchased  for  a  farm,  too,  may  under  some 
special  circumstances  be  treated  as  necessaries.*  And  upon 
such  issues,  quantity  may  be  as  much  for  the  consideration  of 
the  jury  as  quality.^  Primarily,  the  parent  or  guardian  who 
supplies  the  necessaries  is  the  judge  of  what  quantity  and 
quality  are  suitable  for  the  infant.*^  And  if  the  natural  pro- 
tector with  whom  the  child  lives  does  his  legal  duty  as  best 
he  may  according  to  his  means,  the  fact  that  he  is  poor,  and 
unable  to  pay  for  what  was  furnished  to  the  child,  will  not 
render  the  child's  estate  liable.'^ 

If  one  furnish  an  infant  necessaries,  and  also  other  articles 
not  necessary  under  his  circumstances  and  condition,  he  is 
not  on  that  account  precluded  from  recovering  for  the  neces- 

1  Lowe  V.  Griffith,  1  Scott,  458.  *  Mohney  v.  Evnns,  51  Penn.  St.  80. 

2  See  Wharton  r.  Mackenzie,  5  Q.  B.  5  Biirghart  v.  Angerstein,  6  Car.  & 
606.  P.  690. 

3  See  Alrlerson,  B.,  Chappie  )•.  Coop-  6  Thus,  a  jonrney  for  the  cliild's  rec- 
er,  13  M.  &  W.  258.  Gold  filling  and  reation,  witliout  the  parent's  or  guar- 
dentist's  work  xipon  his  teeth  sliould  dian's  approval,  cannot  generally  be 
be  classed  among  the  necessaries  of  a  deemed  a  necessary.  McKanna  v.  Mer- 
minor  of  good  means  and  social  posi-  ry,  61  III.  177. 

tion.     Strong  v.  Foote,  42  Conn.  203.  ^  Hoyt  v.  Casey,  114  Mass.  397. 

589 


§  413  THE   DOMESTIC   RELATIONS.  [PART   V. 

saries ;  though,  as  to  to  the  balance  of  his  claim,  he  may  be 
"without  a  remedy.^ 

An  infant  is  not  liable  for  necessaries  when  he  lives  under 
the  roof  of  his  father,  who  provides  everything  which  seems 
proper.  And  so  when  he  is  supplied  by  a  guardian  or  widowed 
mother.  The  parent  or  the  legal  protector  having  the  means 
and  being  willing  to  furnish  all  that  is  actually  necessary,  the 
infant  can  make  no  binding  contract  for  any  article  without 
such  protector's  consent.  Prima  facie,  where  the  child  resides 
at  home,  proper  maintenance  is  furnished  him :  and  the 
tradesman  who  furnishes  goods  to  an  infant  does  so  at  his 
peril;  it  is  incumbent  upon  him  to  show  the  necessity  of  a 
supply.^  But  an  infant,  when  absent  from  home,  and  not 
under  the  care  of  his  parent  or  guardian,  is  usually  liable  for 
his  own  necessaries.^  And  the  law  will  imply  a  promise,  on 
the  part  of  an  infant  having  no  legal  protector,  to  make  pay- 
ment;^ though  not  for  any  fixed  amount,  but  only  a  reason- 
able price.^ 

There  is  no  inflexible  rule  of  law,  however,  which  makes  it 
incumbent  on  the  tradesman  who  supplies  an  infant  to  inquire 
as  to  his  situation  and  resources  before  giving  him  credit  for 
necessaries  ;  though  it  would  be  prudent  always  for  him  to  do 
so.^  And  the  parent  or  guardian  may  sanction  by  words  or  con- 
duct the  child's  purchase,  so  as  to  make  it  obligatory.  As  in 
a  case  where  the  infant  daughter,  living  with  her  mother  at  a 
hotel,  drove  to  the  plaintiff's  store  in  a  carriage,  accompanied 
by  her  mother,  who  waited  in  the  carriage  while  her  daugh- 
ter purchased  the  goods,  some  of  which  she  took  home  in  the 

1  Turbervilloi'.Whitehouse,  12  Price,  6;  Elrorly.  M3'ers,  2  Head,  33  ;  Krakeru. 

692  ;  Bent  v.  Manning,  10  Vt.  225.   And  Byrum,  13  Rich.  163;  Tilton  v.  Russell, 

see  Johnson  i'.  Lines,  6  W.  &  S.  80  ;  11  Ala.  497;  Husscj' u.  Roundtree,  Bus- 

Wilhelin  v.  Ilardman,  13  Md.  140.  bee  Law,  110.     Perhaps  for  a  return  of 

^  Bainbridge  v.  Pickering,  2  Blacks,  sucli  necessaries  as  the  minor  has  not 

1325 ;  Story  v.  Pery,  4  Car.  &  P.  526 ;  consumed    the    tradesman    may    sue. 

Angel  V.  McLellan,  16  Mass.  28;  Wail-  Nichol  v.  Steger,  2  Tenn.  328. 
ing  V.  Toll,  9  Johns.  146;    Johnson  v.  3  Angel  v.   McLellan,  16  IMass.  28 ; 

Lines,  6  W.  &  S.  80;  Kline  v.  L'Amo-  Hunt  v.  Thompson,  3  Scam.  179. 
reux,  2  Paige,  419;    Perrin  v.  Wilson,  ^  Hyman  i).  Cain,  3  Jones  Law,  111; 

10   Mo.  451  ;    Freeman  v.  Bridger,  4  Epperson  v.  Nugent,  57  ISIiss.  45. 
Jones  Law,  1 ;  Smith  v.  Young,  2  Dev.  5  Parsons  v.  Keys,  43  Tex.  557. 

&  Bat.  26 ;  Connolly  v.  Hull,  3  McCord,         6  Brayshaw  v.  Eaton,  7  Scott,  183. 

690 


CHAP.  III.]      ACTS   BINDING   UPON   THE   INFANT.  §  413 

carriage,  while  others  were  dehvered  at  the  hotel ;  here  it 
might  be  reasonably  inferred,  as  the  court  decided,  that  the 
whole  had  come  under  the  mother's  inspection,  so  as  to  make 
the  infant  liable  for  the  purchase.^ 

The  English  cases  seem  to  lay  especial  stress  upon  the 
question  whether  articles  are  or  are  not  of  themselves  neces- 
saries. And  it  is  held,  not  only  that  an  infant  may  enter  into 
a  contract  for  necessaries  for  ready  money,  but  that  he  may 
be  bound  by  any  reasonable  contract  for  necessaries  on  a 
credit,  though  he  has  an  income  of  his  own,  and  an  allowance 
amply  sufficient  for  his  support.^  In  South  Carolina  a  con- 
trary doctrine  is  maintained  ;  namely,  that  an  infant  who  is 
furnished  with  necessaries,  or  the  means  in  cash  of  procuring 
them,  by  his  parent  or  guardian,  or  from  any  other  source,  is 
prima  facie  not  liable  for  necessaries  furnished  him  on  credit.''^ 
This  is  likewise  the  rule  in  some  other  States.*  Claims 
against  an  infant  for  necessaries  being  perfectly  valid  at  law, 
the  creditor  cannot  sue  in  equity.^  And  while  it  is  true  that 
an  infant  cannot  bind  himself  when  he  has  a  parent  or  guar- 
dian who  supplies  his  wants,  he  may  be  bound  by  the  pur- 
chase of  necessaries  under  the  express  or  implied  authority 
of  his  guardian.^  But  not  for  anything  absurd  or  improper 
in  quantity  or  quality.'^  And  where  credit  is  given  to  a  parent, 
the  infant's  estate  is  not  answerable.^ 

The  rule  as  to  necessaries  in  general  is,  that  it  is  the  prov- 
ince of  the  court  to  determine  whether  the  articles  sued  for 
are  within  the  class  of  necessaries,  and,  if  so,  it  is  the  proper 
duty  of  the  jury  to  pass  upon  the  questions  of  quantity,  qual- 
ity, and  their  adaptation  to  the  condition  and  wants  of  the 
infant.^     But,  as  the  reader  is  already  apprised,  this  rule  is 

1  Dalton  V.  Gib,  5  Bing.  N.  C.  198 ;  nority,  the  burden  is  on  the  latter  to 

Atchison  v.  Bruff,  50  Barb.  381.     And  show,  by  way  of  defence,  that  during 

see  Strong  v.  Foote,  42  Conn.  203.  minority  his  parent  or  guardian  snp- 

-  Burghart  v.  Hall,  4  M.  &  W.  727;  plied  him.      Parsons  v.  Keys,  43  Tex. 

Smith  Contr.  273.  557. 

3  Rivers  v.  Gregg,  5  Rich.  Eq.  274.  5  Oliver  v.  McDuffie,  28  Ga.  522. 

And  see  Mortara  v.  Hall,  6  Sim.  46.5.  ^  Watson  v.  Hensel,  7  Watts,  344. 

*  Nicholson  v.  Wilhorn,  18  Ga.  467.  7  Johnson  v.  Lines,  6  W.  &  S.  80. 

In  a  suit  to  recover  the  price  of  neces-  8  Sinklear  v.  Emert,  18  111.  63. 

saries  sold  to  the  defendant  during  mi-         **  Peters  v.  Fleming,  6  M.  &  W.  42j 

591 


§  414  THE  DOJIESTIC   RELATIONS.  [PAET   V. 

neither  stated  nor  applied  with  invariable  precision  in  all 
cases.  Generally,  the  question  is  one  of  fact  for  the  jury  ; 
and  the  two  piincipal  circumstances  are,  whether  the  articles 
are  suitable  to  tl>e  minor's  estate  and  condition,  and  whether 
lie  is,  or  is  not,  without  other  means  of  supply. ^  An  infant 
will  be  held  to  pay  for  necessaries  what  they  are  reasonably 
worth,  but  not  wliat  he  may  foolishly  have  agreed  to  pay  for 
them.2  Nor  can  the  court  be  precluded,  by  the  form  of  the 
contract,  from  inquiring  into  their  real  value.^ 

§  414.  Contracts  for  Necessaries;  Money  advanced;  Infant's 
Deed,  Note,  &c. ;  Equity  Rules.  —  An  infant  is  liable  to  an  action 
at  the  suit  of  a  person  advancing  money  to  a  third  party  to  pay 
for  necessaries  furnished  to  the  infant.*  But  it  is  thought  to  be 
otherwise  as  to  money  supplied  directly  to  the  infant,  to  be  by 
him  thus  expended,  notwithstanding  the  money  be  actually 
laid  out  for  necessaries.^  The  reason  for  this  distinction  is  said 
to  be  that  in  the  latter  case  the  contract  arises  upon  the  lend- 
ing, and  that  the  law  will  not  supj)ort  contracts  wliieh  are  to 
depend  for  their  validity  upon  a  subsequent  contingency.^ 
One  writer  admits  that,  according  to  some  reports  of  a  leading 
case,  the  court  held  that  if  the  money  were  actually  ex- 
pended for  necessaries  the  infant  would  be  chargeable  ;  '^  but 
adds  that  the  weight  of  authority  is,  tliat  the  infant  is  not 
liable  at  law  for  money  thus  lent  and  appropriated,^  What 
this  weight  of  authority  may  be  is  not  apparent,  but  the  anal- 
ogies elsewhere  noticed  as  to  a  wife  are  to  be  considered 
as  in  point.     The  equity  rule  is,  that  if  money  is  lent  to  an 

Harrison  v.  Fane,  1  Man.  &  Gr.  550;  v.  Peele,  1  Salk.  38G;  Clarke  v.  Leslie, 

Plielps  V.  Worcester,  11  N.  H,  51  ;  Mer-  5  Esp.  28. 

riam  r.  Cnnninglinm,  11  Cusli.  40;  Bee-  ^  See  Swift?'.  Bennett,  10  Cush.436. 

ler  V.  Youn,?,  1  Bihb,  519.  ^  Ellis  v.  Ellis,  12  Mod.  I'J7. 

1  Per   Sliaw,  C.  J.,  Davis   v.  Cald-  ^  Met.  Contr.  72.    Tlie  learned  writer 

well,  12  Cush.  512.  quotes  a  dictum  from   10  Mod.  67,  to 

-  Locke  V.  Smith,  41  N.  H.  346.  controvert  that  of  12  Mod.  197,  which 

3  See  10  Mod.  85;   Met.  Contr.  73;  last  held  that  money  niiglit  be  some- 

2  Kent  Com.  240;  Parsons  y.  Keys,  43  times  properly  charged  upon  the  infant. 

Tex.  557.  But  the  context  only  contemplates  the 

<  Swift  V.   Bennett,   10  Cush.  436;  "great  difference  between  lending  an 

Kandall  v.  Sweet,  1  Denio,  460.  infant  money  to  buy  necessaries,  (lud 

^  Maonliprs.  Tnf.  505,  506;    Ellis  v.  actmi'li/  seei7ig  the  monei/  solaid  o'lt."   Bi'- 

Ellis,  5  Mod.  368 ;  12  Mod.  197;  Earle  sides,  it  is  not  clear  which  of  the  two  la 

the  better  dictum. 

592 


CHAP.   III.]       ACTS   BINDING   UPON   THE   INFANT.  §  414 

infant  to  pay  for  necessaries,  and  it  is  so  applied,  the  infant 
becomes  liable  in  equity ;  for  the  lender  stands  in  place  of 
the  payee.^  And  this  is  the  New  York  doctrine,  whether 
legal  or  equi table. ^  An  innkeeper's  lien  on  the  baggage  of 
his  infant  guest  has  been  protected  in  our  courts,  notwith- 
standing the  infant  acted  improperly  and  contrary  to  his 
guardian's  wishes,  so  long  as  the  innkeeper  acted  in  good 
faith  ;  and  this,  even  to  the  extent  of  protecting  the  innkeeper 
for  money  furnished  the  infant,  which  was  expended  for  neces- 
saries.^ Circuity  of  action  should  not  be  favored  at  this  late 
day,  especially  when  the  object  is,  after  all,  to  enforce  a  moral 
obligation  in  small  transactions. 

The  old  books  say  that  an  infant  may  bind  himself  by  his 
deed  to  pay  for  necessaries.*  Yet  it  has  been  considered 
clearly  settled  that  he  cannot  do  so  by  a  bond  in  a  penal  sum  ; 
since  it  cannot  be  to  his  advantage  to  become  subject  to  a 
penalty.^  But  on  the  question  whether  an  infant  is  bound 
by  a  note  not  negotiable  given  for  necessaries,  there  is  an 
irreconcilable  difference  of  opinion  in  the  authorities  ;  though 
Story  considers  the  weight  of  modern  English  and  American 
authorities  greatly  in  favor  of  holding  promissory  notes  given 
or  indorsed  by  an  infant  voidable  only,  and  therefore  capable 
of  being  ratified  after  the  party  comes  of  age.^  The  mischief 
of  holding  an  infant's  promissory  note  for  necessaries  to  be 
worthless  is  the  same  as  in  loans  of  money  for  the  same  pur- 
pose ;  namely,  that  an  infant  is  thereby  allowed  to  get  his 
supplies  without  paying  for  them.  Equity  influences  the 
later  cases ;  that  somewhat  novel  and  yet  manifestly  just 
principle  gaining  ground  that  one  who  receives  advantages 
is  liable  on  an  implied  contract  to  furnish  a  suitable  recom- 
pense. Reeve  and  others  state  the  law  thus:  that  an  infant 
is  not  bound  by  any  express  contract  for  necessaries  to  the 

1  Marlow  v.  Pitfeild,  1  P.  Wms.  558.        5  Ayliff  v.  Archclale,  Cro.  Eliz.  920 ; 

2  Smith  V.  Olipliant,  2  Sandf.  306.  Corpe  v.  Overton,  10  Bing.  252 ;  Smith 
And   see  Randall  v.  Sweet,  1  Denio,     Contr.  281;  Met.  Contr.  75. 

460,  per  Bronson,  C.  J.  «  story  Prom.  Notes,  6th  ed.  §  78, 

8  Watson  V.  Cross,  2  Duv.  147.  and  cases  cited.     And  see  2  Kent  Com. 

*  Com.  Dig.  Infant.     But  see  next  11th  ed.  257  ;  Bayley  Bills,  ch.  2,  pp. 

page.  45,  46,  5th  ed.     See  last  chapter. 

38  593 


§  414  THE   DOMESTIC   RELATIONS.  [PAKT   V. 

extent  of  such  contract,  but  is  bound  onl}^  on  an  implied  con- 
tract to  pay  the  amount  of  their  value  to  him  ,  that  when  the 
instrument  given  by  him  as  security  for  payment  is  such  that, 
by  the  rules  of  law,  the  consideration  cannot  be  inquired 
into,  it  is  void  and  not  merely  voidable  ;  that  whenever  the 
instrument  is  such  that  the  consideration  may  be  inquired 
into,  he  is  liable  thereon  for  the  true  value  of  the  articles  for 
which  it  was  given. ^  This  excellent  statement  could  hardly 
be  improved  upon,  except  so  far  as  equitable  doctrine  may 
properly  enlarge  the  expression  ;  and,  for  a  topic  so  entirely 
unsettled,  is  as  well  entitled  to  be  called  good  law  as  any- 
thing else.  And,  what  is  more,  it  has  justice  in  it.  The 
doctrine  has  received  substantial  encouragement  in  Massa- 
chusetts.2  Even  a  bond  for  necessaries  has  been  deemed 
binding  in  a  State  where  the  statute  allows  its  consideration 
to  be  impeached  and  a  judgment  pro  tanto  rendered  for  the 
amount  actually  diie.^  The  same  practical  result  seems  to 
be  reached  in  New  Hampshire,  and  other  States,  so  as  further 
to  give  the  infant's  indorser  or  surety  a  remedy  against  him  ;  ^ 
and  the  broad  doctrine  conforms  to  equitable  procedure  in 
other  analogous  cases.^ 

1  Reeve  Dam.  Eel.  220,  230  ;  2  Dane  that  it  was  actually  expended  for  neces- 
Abr.  364,  365 ;  Met.  Contr.  75.  saries.     Price  v.  Sanders,  60  Ind.  310. 

2  Stone  V.  Dennis,  13  Pick.  6,  7,  per  °  We  have  seen  a  similar  rule  ap- 
Shaw,  C.  J. ;  Earle  v.  Reed,  10  Met  plied  of  inquiry  into  consideration  in 
387.  tiie  case  ot"a  married  woman's  contract 

3  Guthrie  v.  Morris,  22  Ark.  411.  under    equity    and    modern    statutes. 
*  M'Crillis   v.  How,   3  N.    H.  348;    Supra,  Ta.n  II.  c.  11.     An  account  for 

Conn  0.  Coburn,  7  N.  H.  368;  Dubose  necessaries  was  allowed  in  equity,  with 

r.  Wheddon,  4  I\rCord,  221 ;  Haine  v.  a  lien  on  the  infant's  reversionary  in- 

Tarrant,  2  Hill  (S.  C),  400  ;  McMinn  v.  terest,  in  a  recent  English  case,  although 

Richmonds,    6  Yerg.    9,      See,  contra,  the  minor's  deed  of  sale  of  his  rever- 

Swasey  v.  Vanderheyden,  10  Johns.  33.  sionary  interest,  given  during  minority, 

A  late  Indiana  case  tends  in  the  same  as  security,  was    declared  not  binding 

direction.     Here  it  is  said  an  infant  is  upon   him.     Martin  v.   Gale,  4  Ch.  D. 

not  liable  at  law  on  his  note  or  other  628.     A   similar  rule   is   observed   in 

contract  whereby  he  obtains  money  to  charging   a  married  woman's  separate 

build  a  barn  or  work  his  farm,  although  estate.     In   a  late  Vermont  case    this 

the   money  be  actually  expended  for  later  rule  received   a  striking  illustra- 

necessaries;  since  the  indebtedness  for  tion.     An  infant  boarded  in  a  country 

necessaries  for  which  he  is  liable  must  town  for  some  twenty  weeks  at  a  rea- 

be  created  directly   therefor.     But,   in  sonable  price.     The   person   to   whom 

equity,  the  infant  is  liable  for  the  money  he    was  indebted  owed  his  own  adult 

so  obtained,  where  the  creditor  can  show  son  money,  and   for   the   convenience 

594 


CHAP,  in.]      ACTS   BINDING   UPON   THE   INFANT. 


§415 


We  maj  here  add  that  infancy  of  the  maker  of  a  note  does 
not  excuse  the  want  of  a  demand  on  him  by  the  holder  in 
order  to  charge  the  indorsee.^ 

§  415.  Binding  Contracts  as  to  Marriage  Relation;  Promise  to 
marry  not  binding.  —  There  are  Other  contracts  besides  neces- 
saries which  are  excepted  from  the  general  rule,  and  are  made 
obligatory  upon  the  infant;  being  neither  void  nor  voidable. 

Thus  contracts  of  marriage  are  binding,  if  executed ;  they 
cannot  be  avoided  on  the  ground  of  infancy,  as  we  have 
shown  in  another  connection ;  ^  while  on  the  other  hand  no 
such  considerations  of  policy  attach  to  an  infant's  promise  to 
marry,  and  such  promise  is  not  binding.^  So,  too,  the  gen- 
eral rights  and  liabilities  of  a  husband  as  to  custody,  main- 
tenance, and  the  like,  which  are  incidental  to  the  marriage 
relation,  apply,  from  reasons  of  policy,  to  infants  as  to  adults.* 
So  is  a  contract  for  the  burial  of  a  spouse  held  beneficial  and 
binding  upon  an  infant.^ 


of  the  parties  drew  an  order  upon  the 
infant,  autliorizing  him  to  pay  the 
amount  of  the  board  to  his  son ; 
which  order  was  duly  received,  and  tlie 
infant  agreed  to  pay  it.  Soon  after, 
by  consent  of  the  parties,  this  order 
was  surrendered,  and  the  infant  substi- 
tuted in  its  place  his  promissory  note. 
This  note  was  negotiable,  but  never 
was  negotiated ;  and  the  holder,  the 
adult  son  of  the  person  furnishing 
board,  brought  a  suit  thereon.  Tlie 
evidence  showed  that  the  defendant's 
board  constituted  tlie  sole  considera- 
tion of  the  note.  It  was  held  that  the 
consideration  of  the  note  was  open  to 
inquiry,  and  that,  upon  the  facts  found, 
the  defendant  was  liable  to  the  plaintiff 
for  the  full  amount  of  the  note ;  and,  as 
the  court  also  decided,  with  interest. 
Bradley  v.  Pratt,  23  Vt.  378.  Says  the 
learned  judge  who  gave  the  opinion  in 
this  case,  after  a  full  examination  of 
the  conflicting  authorities  as  to  the 
infant's  liability  on  his  promissory  note 
for  necessaries  :  "  We  may  then,  we 
think,  regard  the  question  as  still  in 
dubio,  and  justifying  the  court  in  treat- 


ing it  as  still  an  open  question.  And 
being  so,  we  should  desire  to  put  it 
upon  safe  and  consistent  ground.  We 
are  led,  then,  to  inquire  what  is  the 
true  principle  lying  at  the  foundation 
of  all  these  inquiries.  We  think  it  is, 
that  the  infant  should  be  enabled  to 
pledge  his  credit  for  necessaries  to  any 
extent  consistent  with  his  perfect  safety. 
All  the  cases  and  all  the  elementary 
writers  expressly  hold  that  it  is  for  the 
benefit  of  tlie  infant  that  he  should  be 
able  to  contract  for  necessaries ;  and 
we  see  no  reason  why  he  may  not  be 
allowed  to  contract  in  the  ordinary 
modes  of  contracting,  so  far  as  his  per- 
fect safety  is  maintained  always."  See 
Thing  V.  Libbey,  16  Me.  55  ;  Kay  v. 
Tubbs,  50  Vt.  688, 

1  Wyman  f.  Adams,  12  Gush.  210. 

2  See    Husband    and    Wife,  ch.  1 
Bonney  v.  Reardin,  6  Bush,  34. 

3  Schoul.  Hus.  &  Wife,  §§   24,  42 
Rush  V.  Wick,  31  Ohio  St.  521. 

*  Bac.  Abr.  Infancy  and  Age  (B) 
3  Burr.  1802  ;  Met.  Contr.  GQ. 

6  Chappie  r.  Cooner,  13  M.  &  W. 
259 ;  Schoul.  Hus.  &"Wife,  §§  412,  413. 

595 


§  418  THE   DOMESTIC   EELATIONS.  [PART  V. 

§  416.  Acts  which  do  not  touch  Infant's  Interest ;  Where  Trus- 
tee, Officer,  &c.  —  The  acts  of  an  infant  that  do  not  touch  his  in- 
terest, but  which  take  effect  from  an  authority  which  he  is  by- 
law trusted  to  exercise,  are  binding ;  as  if  an  infant  executor 
receives  and  acquits  debts  to  the  testator,  or  an  infant  officer 
of  a  corporation  joins  in  corporate  acts,  or  any  other  infant 
does  the  duties  of  an  office  which  he  may  legally  hold.^  And 
his  conveyance  of  land  which  he  held  in  trust  for  another,  in 
accordance  with  the  trust,  is  not  to  be  disaffirmed  by  him  on 
the  ground  of  infancy ;  a  principle  which  may  extend  some- 
times to  conveyances  from  a  parent  made  to  defraud  creditors.^ 
This  seems  to  arise  from  the  consideration  which  the  law  pays 
to  the  rights  of  others  besides  the  infant ;  or,  to  put  it  differ- 
ently, the  doctrine  may  rest  upon  this  fact,  that  the  infant  in 
such  cases  does  not  act  as  an  infant.  So  the  acts  of  the  king 
cannot  be  avoided  on  the  ground  of  infancy ;  partly  for  the 
same  reasons,  partly  as  one  of  the  attributes  of  his  sover- 
eignty .^  This  attribute  of  sovereignty  may  perhaps  enter  as 
an  element  into  the  public  acts  of  infants  in  this  country 
who  are  improperly  chosen  to  civil  offices,  yet  whose  official 
acts  should  be  sustained. 

§  417.  Infant  Members  of  Corporations. —  It  is  held  that  in- 
fants and  married  women,  owning  proprietary  rights  in  town- 
ships, are  not  by  reason  of  legal  incapacity  prevented  from 
being  bound  by  the  acts  of  proprietors  at  legal  meetings.* 
And  the  same  is  doubtless  true  of  infant  shareholders  in 
corporations  generally.  Their  incapacity  would,  otherwise, 
block  the  wheels  of  business  altogether  in  matters  where  it  is 
really  property,  and  not  persons,  that  are  usually  represented.^ 

§  418.  Acts  which  the  Law  would  have  compelled.  —  It  is  an 
old  and  well-settled  doctrine  that  an  infant  will  be  bound  by 
any  act  which  the  law  would  have  compelled  him  to  perform  ; 
as  if  the  infant  make  equal  partition  of  lands,  or  assign  dower, 

1  Met.    Contr.    66.     See   Butler  v.         3  Met.  Contr.  66. 

Breck,  7  Met.  164;  Roach  v.  Quick,  9         *  Townsend  y.  Downer,  32  Vt.  183. 
Wend.  238.  ^  As  to  the  binding  force  of  a  decree 

2  Prouty  V.  Edgar,  6  Clarke  (Iowa),  in  equity  upon  the  infant's  property, 
353;  Starr  v.  Wright,  20  Oliio  St.  97;  see  post,  c.  6. 

Elliott  V.  Horn,  10  Ala.  848. 
596 


CHAP.  III.]       ACTS   BINDING   UPON   THE   INFANT.  §  419 

or  release  an  estate  mortgaged  on  satisfaction  of  the  debt.^ 
But  it  is  held  that  this  rule  does  not  apply  to  the  case  of  a 
voluntary  distribution :  for  the  law,  though  it  would  have 
coerced  a  distribution,  might  not  have  made  just  such  a  one 
as  was  made  by  the  parties.^ 

§  419.  Contracts  binding  because  of  Statute;  Enlistment;  In- 
denture. —  Enlistments  are  binding  contracts  under  appropri- 
ate public  statutes.^  Whenever  a  statute  authorizes  a  contract 
which  from  its  nature  or  objects  is  manifestly  intended  to  be 
performed  by  infants,  such  a  contract  must,  in  point  of  law, 
be  deemed  for  their  benefit  and  for  the  public  benefit ;  so  that 
when  bona  fide  made  it  is  neither  void  nor  voidable,  but  is 
strictly  obligatory  upon  them.  Yet  if  there  be  fraud,  circum- 
vention, or  undue  advantage  taken  of  the  infant's  age  or 
situation  by  the  public  agents,  the  contract  could  not,  in  rea- 
son or  justice,  be  enforced.*  And  contracts  of  enlistment  are 
not  by  our  statutes  usually  made  binding  upon  any  infants 
under  a  prescribed  age,  without,  at  all  events,  the  consent  of 
parent  or  guardian.^ 

On  like  principles,  a  minor  may  be  bound  by  his  indentures 
of  apprenticeship,  executed  in  strict  conformity  to  statute ; 
these  being  likewise  deemed  for  his  benefit.  By  the  custom 
of  London,  and  under  the  laws  of  some  States,  the  covenants 
of  the  minor  apprentice  are  obligatory  upon  him.  But  it  is 
otherwise  by  the  common  law  of  England,  and  also  under  the 
statutes  of  Elizabeth,  and  in  New  York,  Massachusetts,  and 
other  States,  Still,  although  the  infant  may  not  be  liable  for 
breach  of  his  covenants,  he  cannot  dissolve  the  indenture.^ 
The  English  doctrine  is  that  indentures  are  so  far  binding, 

1  Co.  Litt.  38  a,  172  a ;  3  Burr.  1801 ;  5  Matter  of  Tarble,  25  Wis.  390  :  In 
Met.  Contr.  67;  Jones  I'.  Brewer,  1  Pick.  ?-e  McDonald,  1  Low.  100;  Seavey  v. 
314  ;  Bavington  v.  Clarice,  2  Penn.  115  ;     Seymour,  3  Cliff.  439. 

Prouty  r.  Edgar,  6  Clarke  (Iowa),  353.  «  Met.  Contr.  06.  But  in  some  States 

2  Kilcreasey.  Shelby,  23  Miss.  161.  he  can.     See   Woodruff    v.    Logan,    1 

3  King  V.  Rotherfield  Greys,  1  B.  &  Eng.  276;  Stokes  ».  Hatcher,  1  South. 
C.  345;  Commonwealth  y.  Gamble,  11  84;  M'Dowles's  Case,  8  Johns.  331; 
S.  &  R.93;  United  States  v.  Bainbridge,  Blunt  v.  Melcher,  2  Mass.  228  ;  Rex.  v. 
1  Mason,  83,  before  Story,  J.  Inhabitants  of  Wigston,  3  B.  &  C.  484  ; 

*  United  States  ?;.  Bainbridge,  su/ira,    Clark  v.  Goddard,  39  Ala.  164;  infra, 
1  Mason,    83.     And    see    Franklin    v.    Part  VI.  c.  1. 
Mooney,  2  Te.x.  462. 

597 


§  421  THE   DOMESTIC  RELATIONS.  [PART   V. 

that  the  master  may  enforce  his  rights  under  them  ;  and  the 
legal  incidents  of  service  as  apprentice  attach  to  this  relation  ; 
unless  the  master  by  his  own  misconduct  deprives  the  infant 
of  the  benefits  of  the  contract,  in  which  case  the  law  will 
release  the  latter  from  his  bargain.^ 

§  420.  Infant's  Recognizance  for  Appearance  on  Criminal  Charge. 
—  Partly  out  of  respect  to  statute  requirements,  and  partly, 
no  doubt,  because  it  is  beneficial  to  one  charged  with  crime 
to  be  allowed  to  enter  into  recognizance  for  his  personal 
appearance  in  court,  instead  of  suffering  close  confinement 
meantime,  it  is  held  that  a  minor  defendant  in  criminal  pro- 
ceedings may  bind  himself  personally  by  such  recognizance, 
entered  into  after  the  usual  form  by  himself  and  his  sureties.^ 

§  421.  Whether  Infant's  Contract  for  Service  binds  him,  — 
Apart  from  statutes  prescribing  differently,  the  executory  con- 
tract of  a  minor,  made  without  the  consent  of  his  parent  or 
guardian,  for  employment  for  a  certain  or  uncertain  time,  by 
means  of  which  he  may  obtain  necessaries  or  a  livelihood,  may 
be  treated  perhaps  as  void  if  positively  disadvantageous  in 
terms  ;  ^  it  is  not  by  the  better  authorities  to  be  considered  as 
absolutely  binding  upon  him,  however  fair  and  advantageous 
its  provisions,  to  the  extent  of  compelling  him  to  fulfil  stipula- 
tions like  an  adult;  but  so  far  as  he  himself  is  concerned  it  is 
usually  voidable.*  If  the  contract  were  made  by  parent  or 
guardian,  the  employer's  relation  as  to  such  a  party  would  of 
course  be  different. 

In  this  country,  the  cases  are  very  common  where  a  minor 
is  said  to  be  emancipated  and  entitled  to  contract  for  and 
receive  his  own  wages.  But  the  significance  of  the  word 
"  emancipation  "  is  not  exact ;  and,  certainly,  the  legal  obliga- 
tion of  the  infant's  contract  for  work  is  by  no  means  com- 
mensurate with  his  right  to  the  fruits  of  his  own  toil.^     His 

1  5  Dowl.  &  Ry.  330  ;  6  T.  R.  558;  *  See  Person  v.  Chase,  37  Vt.  G47, 
Cro.  Jac.  494;  Cro.  Car.  179;  Met.  and  other  cases  referred  to  in  c.  5, 
Contr.  66 ;  Rex  v.  Mountsorrel,  3  M.  &    post. 

S.  497.  ^  As  to  the  more  general  effect  of  a 

2  State  V.  Weatherwax,  12  Kan.  463.  child's  emancipation,  see    supra,   Part 

3  Regina  v.  Lord,  12  Q.  B.  757 ;  supra,  IIL  c.  5. 
§  403,  and  comments  in  note. 

598 


CHAP.  IV.]      THE  INJURIES  AND  FRAUDS  OF  INFANTS.      §  423 

legal  capacity  to  do  acts  necessarily  binding  does  not  seem  to 
be  enlarged  by  the  circumstance  that  his  father  has  given  him 
his  time,^  or  that  he  serves  out  with  neither  parent  nor  guar- 
dian to  assume  liabilities  to  others  for  him. 


CHAPTER   IV. 

THE   INJURIES   AND   FRAUDS   OF   INFANTS. 

§422.  Division  of  this  Chapter.  —  In  this  chapter  we  shall 
treat  first,  of  injuries  and  frauds  committed  by  an  infant ; 
second,  of  injuries  and  frauds  suffered  by  an  infant. 

§  423.  Injuries  committed  by  Infant ;  Infant  civilly  Responsi- 
ble.—  First,  as  to  injuries  and  frauds  committed  by  an  infant. 
It  is  a  general  principle  that  infancy  shall  not  be  permitted 
to  protect  wrongful  acts.  To  use  the  forcible  expression  of 
Lord  Mansfield,  the  privilege  of  infancy  is  given  as  a  shield 
and  not  a  sword.^  And  minors  are  liable,  not  only  for  their 
criminal  acts,  but  for  their  torts ;  and  must  respond  in  dam- 
ages in  all  cases  arising  ex  delicto  to  the  extent  of  their 
pecuniary  means,  irrespective  of  the  form  of  action  which 
the  law  prescribes  for  redress  of  the  wrong.^ 

An  infant  is  then  as  fully  liable  as  an  adult  in  an  action  for 
damages  occasioned  by  injury  to  the  person  or  property  of 
another  by  his  wrongful  act.^  True,  it  lias  been  observed, 
that  where  infants  are  the  actors,  that  might  probably  be  con- 
sidered an  unavoidable  accident,  which  would  not  be  so  where 
the  actors  are  adults.^  But,  says  a  writer,  where  the  minor 
commits  a  tort  with  force,  he  is  liable  at  any  age  ;  for  in  case 
of  civil  injuries  with  force,  the  intention  is  not  regarded.^ 

1  Post,  c.  5.  4  Conklin  v.   Thompson,   29  Barb. 

2  Zouch  V.  Parsons,  3  Burr.  1802.         218. 

s  Met.  Contr.  49 ;   1   Addis.  Torts,         ^  Bullock    v.     Babcock,    3    Wend. 

731 ;   8  T.  R.  335 ;  2  Kent  Com.  240,  391. 

241 ;    School    District  v.   Bragdon,    3         6  Reeve  Dom.  Eel.  258.     See  Neal 

Fost.  507  ;  Bullock  v.  Babcock,  3  Wend.  v.  Gillett,  23  Conn.  4-37. 
391 J  Oliver  v.  McClellan,  21  Ala.  675. 

599 


§  423  THE  DOMESTIC   RELATIONS.  [PAET  V. 

It  follows  from  what  we  have  said,  that  for  an  injury  occa- 
sioned by  an  infant's  negligence,  he  may  be  held  civilly  an- 
swerable. As  where,  in  sport,  he  discharges  an  arrow  in  a 
school-room  where  there  are  a  number  of  boys  assembled, 
and  thereby  disables  another ;  ^  or  aims  a  missile  at  an  older 
boy  and  accidentally  hits  another  and  younger  one.^  And 
even  though  under  seven  years  of  age,  a  child  has  been  held 
liable  in  trespass  for  breaking  down  the  shrubbery  and 
flowers  of  a  neighbor's  garden.^  But  not  for  turning  horses 
which  were  trespassing  on  his  father's  land  into  the  high- 
way, for  this  does  not  constitute  a  tort.^  All  the  cases  agree 
that  trespass  lies  against  an  infant.  And  minors  are  charge- 
able in  trespass  for  having  procured  others  to  commit  assault 
and  battery.^ 

But,  supposing  the  trespass  to  have  been  committed  by  the 
express  command  of  the  father ;  is  the  infant  then  liable?  So 
it  was  thought  in  a  Vermont  case,  where  the  decision  never- 
theless rested  on  a  different  ground.^  "  An  infant,  acting 
under  the  command  of  his  father,  as  a  wife  in  the  presence  of 
her  husband,  might  be  excused  from  a  prosecution  for  crime, 
if  it  should  appear  that  the  intent  was  wanting,  or  that  he 
was  acting  under  constraint ;  yet  he  is  answerable  civiliter 
for  injuries  he  does  to  another,"  "^  And  more  recently  this 
question  is  plainly  decided  in  Maine,  in  the  affirmative.^  On 
the  other  hand,  it  would  appear  that  an  infant  cannot  be  held 
responsible  for  torts  committed  by  persons  assuming  to  act 
under  his  implied  authority  ;  in  other  words,  that  his  liability 
is  not  to  be  extended  in  any  case  beyond  acts  committed  by 
himself  or  under  his  immediate  and  express  direction.^ 

An  infant  in  the  actual  occupation  of  land  is  responsible  for 
nuisances  and  injuries  to  his  neighbor,  arising  from  the  negli- 
gent use  and  management  of  the  property. ^"^     And  ejectment 

1  Bullock  V.  Babcock,  3  Wend.  391.  6  Humphrey  v.  Douglass,  10  Vt.  71. 

2  Peterson  v.  Haffner,  59  Ind.  130;  7  Per  Williams,  C.  J.,  ib. 
Conway  v.  Reed,  66  Mo.  346.  8  gcott  v.  Watson,  46  Me.  362. 

3  Huchting  v.  Engel,  17  AVis.  231.  9  Bobbins  v.  Mount,  4  Rob.  (N.  Y.) 
*  Humphrey  v.  Douglass,  10  Vt.  71.  553;  Burnham  v.  Seaverns,  101  Mass. 
5  Sikes  V.  Johnson,  16  Mass,   389;     360. 

TifEt  V.  Tim,  4   Denio,    177 ;    Scott  v.         '^'>  1  Addis.  Torts,  731  ;    McCoon  v. 
AVatson,  46  Me.  362.  Smith,  3  Hill,  147. 

600 


CHAP.  IV.]      THE  INJURIES  AND  FRAUDS  OF  INFANTS.      §  424 

may  be  maintained  against  an  infant  for  disseisin,  that  being 
a  tort. 

§  424.  Immunity  for  Violation  of  Contract  distinguished.  — 
The  cases  on  the  subject  of  an  infant's  torts  do  not  seem 
quite  consistent,  so  far  as  decisions  upon  the  facts  are  con- 
cerned ;  but  the  principle  wliich  runs  through  them  all  serves 
to  harmonize  the  apparent  contradictions.  This  is  the  prin- 
ciple :  that  the  courts  will  hold  an  infant  liable  for  what  are 
substantially  his  torts,  but  not  for  mere  violations  of  a  con- 
tract, though  attended  with  tortious  results^  and  though  the 
party  ordinarily  has  the  right  to  declare  in  tort  or  contract  at 
his  election.  It  must  be  remembered  that,  for  his  contracts, 
the  infant  is  not  ordinarily  liable ;  for  his  torts  he  is.  And 
this  distinction  is  at  the  root  of  the  legal  difficulty.  The 
plaintiff  cannot  convert  anything  that  arises  out  of  a  contract 
into  a  tort  and  then  seek  to  enforce  the  contract  through  an 
action  of  tort.  Therefore  was  it  held  that  where  a  boy  hired 
a  horse  and  injured  it  by  immoderate  driving,  this  was  only  a 
breach  of  contract  for  which  he  was  not  liable.^  Nor  was  he 
liable  for  breaking  a  borrowed  carriage.^  And  where  in  an 
exchange  of  horses  the  infant  had  falsely  and  fraudulently 
warranted  his  mare  to  be  sound,  he  was  protected  from  the 
consequences  on  the  same  pi-inciple.^ 

The  English  cases,  decided  many  years  ago,  exhibit  a 
strong  disposition  to  apply  this  rule  in  favor  of  an  infant's 
exemption.  And  the  language  of  the  court  in  Manhy  v.  Scott^ 
with  reference  to  the  delivery  of  goods  to  an  infant,  and  suit 
afterwards  for  trover  and  conversion,  was  that  the  latter  shall 
not  be  chargeable  :  "  for  by  that  means  all  infants  in  England 
would  be  ruined."*  Says  a  judge,  deciding  a  case  on  the 
same  general  principle,  "  the  judgment  will  stay  for  ever, 
else  the  whole  foundation  of  the  common  law  will  be 
shaken."  ^  But  a  more  equitable  principle  pervades  the  later 
cases.     Thus  in  an  English  case,  where  one  twenty  years  old 

1  Jennings  v.  Rundall,  8  T.  R.  335.  *  1  Sid.  129,  quoted  with  approba- 

2  Sclienck  v.  Strong,  1  Soiitli.  87.         tion  in  Jennings  v.  Rnndall,  supra. 

8  Green    v.   Greenbank,    2    Marsh.         ^  Johnson  v.  Pye,  1   Keb.  905.     See 
485;    Howlett  v.   Haswell,   4   Campb.     n.  to  Hewlett  u.  Haswell,  s»y)ra. 
118,  Morrill  v.  Aden,  19  Vt.  505. 

601 


§  424  THE   DOMESTIC   RELATIONS.  [PART  V. 

hired  a  horse  for  a  ride,  and  was  told  phiinly  that  it  was  not 
let  for  jumping,  and  notwithstanding  caused  the  horse  to 
jump  a  fence  and  killed  the  animal,  he  was  held  liable  for  the 
wrong.i  And  in  Vermont  an  infant  was  held  answerable, 
not  many  years  ago,  where  he  hired  a  horse  to  go  to  a  certain 
place  and  return  the  same  day,  then  doubled  the  distance  by 
a  circuitous  route,  stopped  at  a  house  on  the  way,  left  the 
horse  all  night  without  food  or  shelter,  and  by  such  over- 
driving and  exposure  caused  the  death  of  the  horse.^  This  is 
the  Massachusetts  doctrine  likewise.^  The  New  Hampshire 
rule  is  that  the  infant  bailee  of  a  horse  is  liable  for  positive 
tortious  acts  wilfully  committed,  whereby  the  horse  is  injured 
or  killed:  though  not  for  mere  breach  of  contract,  as  a  fail- 
ure to  drive  skilfully.*  The  distinction  to  be  relied  upon  is, 
that  when  property  is  bailed  to  an  infant,  his  infancy  protects 
him  so  long  as  he  keeps  within  the  terms  of  the  bailment; 
but  when  he  goes  beyond  it,  there  is  a  conversion  of  the 
property,  and  he  is  liable  just  as  much  as  though  the  original 
taking  was  tortious.^ 

Chief  Justice  Marshall  pronounces  infancy  to  be  no  com- 
plete bar  to  an  action  of  trover,  although  the  goods  converted 
be  in  the  infant's  possession  in  virtue  of  a  previous  contract. 
"  The  conversion  is  still  in  its  nature  a  tort ,  it  is  not  an  act  of 
omission  but  of  commission,  and  is  within  that  class  of  offences 
for  which  infancy  cannot  afford  protection."^  This  doctrine 
is  approved  in  New  York.^  And  in  Maine.^  So,  in  England, 
detinue  will  lie  against  an  infant,  where  goods  were  delivered 
for  a  special  purpose  not  accomplished.^  And  the  general  rule 
seems  to  be  now  well  established  that  an  infant  is  liable  for 
goods  entrusted  to  his  care,  and  unlawfully  converted  by  him  ; 
though  as  to  what  would  constitute  such  conversion,  the 
authorities  are  not  agreed.^^     Thus  it  is  held  that  while  a 

1  Burnard  v.  Haggis,  14  C.  B.  n.  s.  Pennsylvania.  Penrose  v.  Curren,  3 
45.  Rawle,  .351. 

2  Towne  v.  Wiley,  23  Vt.  355.   And  6  Vasse  v.  Smith,  6  Crancli,  226. 
see   Ray  y.  Tubbs,  50  Vt.  688.  ^  Campbell  v.  Stakes,  2  Wend   1.37. 

3  Homer  v.  Tliwing,  3  Pick.  492.  ^  Lewis  v.  Littlefield,  15  Me  2.33. 

4  Eaton  V.  Hill,  50  N.  H.  235.  »  Mills  v.  Graham,  4  B.  &  P.  140. 

5  Towne  v.  Wiley,  supra,  per  Red-  i°  See  Story  Bailments,  §  50  ,  2  Kent 
field,    J.     The    rule    is    otherwise    in  Com.  241 ;  Baxter  v.  Bush,  29  Vt.  465. 

602 


CHAP.  IV.]      THE  INJURIES  AND  FRAUDS  OF  INFANTS.      §  424 

ship-owner  cannot  sue  his  infant  supercargo  for  breach  of 
instructions  he  may  bring  trover  for  the  goods. ^  And  an 
infant,  prevailing  on  the  plea  of  infancy  in  an  action  on  a 
promissory  note  given  by  him  for  a  chattel  which  he  had 
obtained  by  fraud  and  refused  to  deliver  on  demand,  has  still 
been  rendered  liable  to  an  action  of  tort  for  the  conversion  of 
the  chattel :  the  original  tort  not  having  been  superseded  by 
a  completed  contract.^  Replevin  would  lie  for  the  goods  even 
where  a  suit  for  damages  might  fail.^  For  stolen  money  and 
stolen  goods  converted  into  money,  an  infant  is  held  liable  in 
assumpsit.^  Yet  his  conversion  of  specific  goods  should  be 
carefully  distinguished  from  what  is  in  substance  a  breach  of 
his  contract  to  sell  and  account  for  profits.^ 

Where  an  action  for  money  had  and  received  was  brought 
against  an  infant  to  recover  money  which  he  had  embezzled. 
Lord  Ken3'-on  said  that  infancy  was  no  defence  to  the  action ; 
that  infants  were  liable  to  actions  ex  delicto^  though  not  ex 
contractu,  and  though  the  action  was  in  form  an  action  of  the 
latter  description,  yet  it  was  in  point  of  substance  ex  delicto.^ 
For  embezzlement  of  funds,  therefore,  an  infant  may  be  con- 
sidered liable.'^  And  in  New  York,  and  some  other  States,  an 
infant  is  held  responsible  in  tort  for  obtaining  goods  on  credit, 
intending  not  to  pay ;  ^  or  for  drawing  a  check  fraudulently 
against  a  bank  where  he  has  no  funds,  in  payment  of  his  pur- 
chase.^ In  New  Hampshire,  the  general  rule  is  stated  to  be, 
that  if  false  representations  are  made  by  an  infant  at  the  time 
of  his  contract,  he  may  set  up  infanc}^  in  defence  ;  but  that  if 
the  tort  is  subsequent  to  the  contract,  and  not  a  mere  breach 
of  it,  but  a  distinct,  wilful,  and  positive  wrong  of  itself; 
then,  although  it  may  be  connected  with  a  contract,  the  in- 
fant is  liable. ^'^ 

1  Vasse  V.  Smith,  6  Cranch,  226.  ^  Ehvell  v.  Martin,  32  Vt.  217. 

2  Walker  r.  Davis,  1  Gray,  506.  And  8  Wallace  v.  Morse,  5  Hill,  391,  and 
see  Fitts  v.  Hall,  9  N.  H.  441.  cases   cited.      But    the    rule   appears 

2  Badger  v.  Piiinney,  15  Mass.  359.  otherwise  in  Indiana.     Root  v  Steven- 

4  Shaw  V.  Coffin,  58  Me.  254  ;  El  well  son's  Adm'r,  24  Ind.  115. 

V.  Martin,  32  Vt.  217.  9  Mathews  v.  Cowan,  59  III.  341. 

6  See  Mun^er  i;.  Hess,  28  Barb.  75.  lo  Fitts  v.  Hall,  9  N.  H.  441 ;  Prescott 

And  see  Burns  v.  Hill,  19  Ga.  22.  v.  Norris,  32  N.  H.  101. 


^  Bristow  V.  Eastman,  1  Esp.  172. 


603 


§  425  THE   DOMESTIC   RELATIONS.  [PAET   V. 

§  425.  Same  Subject ;  Infant's  Fraudulent  Representations  as 
to  Age,  &c.  —  7''he  plea  of  infancy  has  long  been  considered, 
both  in  England  and  this  country,  a  good  defence  to  an  action 
for  fraudulent  representation  and  deceit.  Thus,  the  rule  is, 
that  an  infant  who  falsely  affirms  goods  to  be  his  own,  and 
that  he  had  a  right  to  sell  them,  and  thereby  induces  the 
plaintiff  "to  purchase  them,  is  not  responsible.^  For  the  plea 
of  infancy,  as  it  is  sometimes  said,  will  prevail  when  the 
gravamen  of  the  fraud  consists  in  a  transaction  which  really 
originated  in  contract.^  Still  more  frequently  has  it  been 
held  that  for  a  false  and  fraudulent  representation  that  he  was 
of  full  age,  there  is  no  remedy  against  the  infant  ;  whether 
money  were  advanced  or  goods  intrusted  to  him  on  the 
strength  of  such  representation.^  The  reader  must  reconcile 
the  sense  of  these  rules  with  some  of  the  foregoing  cases  as 
best  he  may.  If  anything  be  needed  to  show  the  inadequacy 
of  common-law  remedies  for  frauds  and  wilful  misrepresen- 
tations, it  is  just  such  maxims  as  these,  which  have  been 
perpetuated  from   the  old  books. 

Upon  common-law  principle  it  may  well  be  said  that  while 
an  infant's  false  representation  of  full  age  or  other  material 
fraud  may  constitute  a  separate  cause  of  action,  as  for  a  tort, 
it  will  not  render  his  contract  valid  so  as  to  estop  him  from 
avoiding  it.*  The  result  is  circumlocution  and  uncertainty, 
oftentimes  in  trivial  matters. 

Chancery,  handling  its  weapons  with  more  freedom,  is 
accomplishing  results  in  this  respect  more  widely  useful. 
The  doctrine  of  the  English  equity  courts  appears  to  have 
been,  for  years,  that  where  payment  is  made  to  one  falsely 
representing  himself  as  an  infant,  this  is  a  discharge  for  the 

1  Grove   v.  Nevill,   1  Keb    778;    1  127;  Merriam  t;.  Cunningham,  11  Cush. 
Addis.  Torts,  661 ,  Prescott  v    Norris,  40 ;  Brown  v.  McCune,  5  Sandf.  224 ; 
32  N.  H.  101 ;  Morrill  v.  Aden,  29  Vt.  Carpenter  v.  Carpenter,  45  Ind.  142. 
465.     But  see  Word  v.  Vance,  1  Nott  &         *  Carpenter   v.    Carpenter,   45  Ind. 
M'Cord,  197.  142  ;    Conrad   v.  Lane,  26  Minn.  389  ; 

2  Gilson  V.  Spear,  38  Vt.  311.  Heath  v.  Mahoney,  14  N.  Y.  Supr.  100; 

3  Johnson  v.  Pye,  1  Sid.  258  ;  Price  Studwell  v.  Shapter,  54  N.  Y.  249  And 
V.  Hewett,  8  Exch.  146  ;  s.  c.  18  E.  L.  see  Whitcomb  v.  Joslyn,  51  Vt  79 ; 
&  Eq  522 ;  Burley  v.  Russell,  10  N.  H.  Hughes  y  Gallans,  10  Phila.  618. 

184;  Conroe  v.  Birdsall,  1  Johns  Cas. 

604 


CHAP.  IV.]     THE  INJUEIES  AND  FRAUDS  OF  INFANTS.      §  425 

sum  paid  ;  but  that  where  there  was  no  such  misrepresenta- 
tion the  trustee  still  remains  liable  ;  the  mere  belief  that  one 
was  of  age,  of  course,  affording  no  ground  of  justification.^ 
An  English  bankruptcy  case  of  recent  date  carries  the  princi- 
ple still  farther  ;  far  enough  to  startle  those  who  have  rej)osed 
upon  the  assurance  that  the  ancient  judgments  "  will  stay  for 
ever."  A  young  man,  who  from  his  appearance  might  well 
have  been  taken  to  be  more  than  twenty-one  years  of  age, 
engaged  in  trade,  and  wished  to  borrow  or  to  obtain  credit, 
and  for  the  purpose  of  doing  so  represented  himself  to  the 
petitioner  as  of  the  age  of  twenty-two,  expressly  and  dis- 
tinctl3\  It  was  held  timt,  whatever  the  liability  or  non- 
liability of  the  infant  at  law,  he  had  made  himself  liable  in 
equity  to  pay  that  debt.^  But  in  a  somewhat  later  case,  not 
inconsistent  with  these  others,  it  was  held  that  an  infant's 
settlement  upon  his  wife  might  be  avoided  by  him  on  arriving  at 
majority,.notwithstanding  there  was  some  evidence  that  he  frau- 
dulently misstated  his  age  to  her  solicitor ;  the  fact  being,  how- 
ever, that  she,  a  widow  of  thirty-two,  knew  perfectly  well  that 
he  was  under  age,  and  was  not  misled  by  his  representations.^ 
The  result  of  these  late  English  decisions  is  to  reopen  in 
that  country  the  whole  subject  of  an  infant's  liability  on  his 
fraudulent  misrepresentations  ;  and  considerable  uncertainty 
appears  to  pervade  the  latest  common-law  decisions  in  that 
country,  which  incidently  bear  upon  the  subject.^  Whether 
the  new  or  the  old  doctrine  is  in  the  end  to  prevail,  it  is  too 

1  Overton  v.  Bannister,  3  Hare,  503  ;  be  enforced  in  chancery.  Some  wrong 
Stikeman  ;;.  Dawson,  1  De  G.  &  S.  90.  or  injury  to  the  party  complaining  must 

2  /«  ?e  Unity  and  Banking  Associa-  be  shown."  He  further  observes  :  "The 
tion,  3  De  G.  &  J.  63  (1858).  Lords  privilege  of  infancy  is  a  legal  privilege. 
Justices  Bruce  and  Turner  concurred  On  the  one  hand,  it  cannot  be  used  by 
in  this  opinion,  both  expressing  some  infants  for  the  purposes  of  fraud.  On 
reluctance  in  giving  the  judgment.  the  other  hand,  it  cannot,  I  think,  be 

3  Nelson  V.  Stocker,  4  De  G.  &  J.  458  allowed  to  be  infringed  upon  by  per- 
(1859).  Lord  Justice  Turner,  comment-  sons  who,  knowing  of  the  infancy, 
ing  upon  the  case,  said :  "  There  can  must  be  taken  also  to  know  of  the 
be  no  doubt  that  it  is  morally  wrong  in  legal  consequences  which  attach  to  it." 
an  infant  of  competent  age,  as  it  is  in  lb.  p.  465.  See  Inman  i;.  Inman,  L.  R. 
any  other  person,  to  make  any  false  15  Eq.  260. 

representation  whatever;  but  the  ob-  *  See  De  Roo  v.  Foster,  12  C.  B. 
servance  of  obligations  or  duties  which  n.  s.  272(1862);  Wright  v.  Leonard, 
rest  only  upon  moral  grounds  cannot    11  C.  B.  n.  s.  258. 

605 


§  426  THE  DOMESTIC   RELATIONS.  [PAET  V. 

early  yet  to  say;  but  a  collision  has  come,  towards  which 
equity  and  the  common  law  were  fast  tending.  Much,  how- 
ever, depends  upon  the  position  in  which  the  infant's  liabili- 
ties are  presented  in  court. ^ 

§  426.  The  Same  Subject.  —  The  civil-law  doctrine  is  clearly 
that  if  a  minor  represents  himself  of  age,  and  from  his  person 
he  appears  to  be  so,  any  contract  made  with  him  will  be  valid; 
and  the  law  protects  those  who  are  defrauded,  not  those  who 
commit  fraud.^  And  such  was  the  Spanish  law  as  formerly 
prevalent  in  our  South-western  States.^  In  a  Maryland  case, 
too,  we  find  the  suggestion  that  if  an  infant  forms  a  partner- 
ship with  an  adult  he  holds  himself  out  fraudulently  to  the 
world.*  In  Texas,  the  fraudulent  representations  of  an  infant 
are  binding  upon  him.^  Intimations  are  sometimes  found  in 
the  courts  as  to  gross  frauds  w^hich  might  bind  an  infant.^ 
And  in  Kentucky,  not  long  since,  the  court  refused  to  allow  a 
deed  made  by  a  wife  and  her  husband  to  be  avoided  on  the 
ground  of  the  wife's  infancy,  when,  to  induce  the  innocent 
purchaser  to  take  the  land,  she  and  her  husband  had  made  oath 
before  a  magistrate  that  to  the  best  of  their  knowledge  and  in- 
formation she  was  more  than  twenty-one  years  old.  This  was  a 
righteous  decision.'^  In  some  other  States  an  infant  nearly  of 
age  who  entraps  another  into  a  purchase  or  mortgage  loan 
by  direct  participation  in  a  fraud  as  to  his  or  her  age,  has 
been  estopped  in  chancery  from  attacking  the  title  to  the  land 

1  Thus,  very  recently,  where  an  in-  common-law,  and  English  equity  bear- 
fant  had  obtained  a  lease  on  a  false    ings  (1870). 

representation  that  he  was  of  full  age,         *  Kemp  v.  Cook,  18  Md.  130.     The 

it  was  held  in  chancery  that  the  lease  remark    is    quoted    as    that   of    Lord 

must  be  declared  void  and  possession  Mansfield,  in  Gibbs  v.  Merrill,  3  Taunt, 

given  up,  and  the  infant  enjoined  from  307,  but  this  must  be  an  error,  as  no 

parting  with  the  furniture ;    but   that  such  language  appears  in  the  case  re- 

the  infant  could  not  be  made  liable  for  ferred  to,  while  tlie  decision  went  upon 

use    and    occupation.       Lempriere  v.  a  totally  different  ground. 
Lange,  L.  R.  12  Ch.  D.  G75.  &  Kilgore  v.  Jordan,    17  Tex.  341 ; 

2  1  Dom.  pt.  1,  b.  4,  tit.  6,  §  2.  Carpenter  v.  Pridgen,  40  Tex.  32. 

3  See  able  discussion  of  this  subject  ^^  Stoolfos  v.  Jenkins,  12  S.  &  11.399  ; 
by  Hemphill,  C.  J.,  Kilgore  a.  Jordan,  17  2  Kent  Com.  241.  And  see  Sterling  v. 
Tex.  341.  There  is  not  another  Amcri-  Adams,  3  Day,  411;  Davies,  J.,  in 
can  case  to  be  found  where  this  subject  Henry  r.  Root,  23  N.  Y.  544. 

is  so  fully  discussed,  in  its  civil-law,  "  Schmitheimer  v.  Eiseman,  7  Bush, 

298. 

606 


CHAP.  IV.]      THE  INJURIES  AND  FRAUDS  OF  INFANTS.      §  428 

afterwards  on  that  ground,  and  thereby  perpetrating  a  fraud. ^ 
Beyond  this  there  seems  no  special  authority  for  asserting 
that  the  American  doctrine  on  this  subject  is  unsettled,  or 
that  it  is  likely  to  feel  the  change  now  going  on  in  the  Eng- 
lish courts.  In  fact,  an  equity  court  in  North  Carolina  re- 
fused, not  many  years  since,  to  compel  specific  performance 
of  an  infant's  contract  on  the  alleged  ground  of  fraudulent 
misrepresentation  of  his  father  and  himself,  that  he  was  of 
full  age  ;  following  tlie  old  common-law  rule  instead  of  op- 
posing it.2  And  in  many  States  still  an  infant  will  not  thus 
be  debarred  from  disaffirming  his  conveyance  at  majority. ^ 

But  our  American  statutes  sometimes  quicken  the  infant's 
sense  of  honor.  Thus,  in  Iowa,  it  is  enacted  that  one  who, 
in  selling  real  estate,  represents  himself  to  be  of  full  age,  and 
induces  the  grantee  to  buy  on  the  strength  of  that  represen- 
tation, cannot  afterwards  disaffirm  his  contract  on  the  ground 
of  infancy.*  It  would  be  well  if  similar  statutes  were  enacted 
in  every  State.  We  assume,  of  course,  in  general,  that  the 
infant  thus  misrepresenting  has  reached  years  of  discretion 
and  in  appearance  might  be  taken  for  an  adult. 

§  427.  Injuries,  &c.,  suffered  by  Infants.  —  Second.  As  to 
injuries  and  frauds  suffered  by  infants.  Infants  have  a  right 
to  sue,  by  guardian  or  next  friend,  to  recover  damages  for 
injuries  done  to  person  or  property  by  the  tortious  acts  of 
another ;  and  the  ordinary  principles  of  law,  in  this  respect, 
as  to  contributory  negligence,  apply  to  them  as  to  adults.'^ 
But  by  reason  of  their  tender  3^ears,  their  rights  and  remedies 
receive  a  somewhat  peculiar  treatment  in  the  courts,  as  we 
proceed  to  show. 

§428.  Same  Subject;  Child's  Contributory  Negligence.  —  Thus 
it  is  held  that  a  child  eight  years  old  may  sue  one  who  sells 
and  delivers  to  him  a  dangerously  explosive  substance,  such 

'  Ferguson  v.  Bobo,  54  Miss.  121.         *  Prouty  v.  Edgar,  6  Iowa,  353. 
Here  the  fraud  appears  to  have  been         5  \  Addis.  Torts,  712.     The  youth 

perpetrated  without  any  positive  mis-  ot  a  person  injured   does  not   extend 

statement  as  to  age.  tlie  liability  of  the  person  causing  the 

2  Dibble  v.  Jones,  5  Jones  Eq.  389.  injury,  for  the  tortious  acts  of  his  ser- 

^  Sims  V.  Everhardt,  102  U.  S.  Supr.  vants.     Sherman   v.  Hannibal   E.,  72 

300.  Mo.  62.     And  see  posr,  Part  VI.  c.  4. 

607 


§  429  THE   DOMESTIC   RELATIONS.  [PART   V. 

as  gunpowder,  though  upon  his  own  request.^  Such  actions 
are  grounded  upon  the  ignorance  of  the  child  and  the  negli- 
gence of  those  who  fail  to  regard  it. 

The  principle  involved  is  precisely  that  of  the  case  where 
a  man  delivers  a  cup  of  poison  to  an  idiot  or  puts  a  razor  into 
the  hand  of  an  infant.  The  child  uses  that  ordinary  care  of 
which  he  is  presumed  capable  at  his  age;  and  though  this  may 
amount,  logically,  to  actual  carelessness  as  applied  among  adults 
to  the  ordinary  transactions  of  life,  his  right  of  action  is  not 
thereby  forfeited.^  Whoever,  then,  would  avoid  a  suit  like 
this,  must  regulate  his  own  discretion  to  suit  the  party  with 
whom  he  deals,  and  act  at  all  times  with  befitting  prudence. 

But  there  are  cases  Avhere  the  child  himself  may  have  no 
right  of  action  for  injuries  received.  As  if  he  be  technically 
a  trespasser,  and  meddling  with  property  which  does  not 
belong  to  him.  Of  this  rule  a  recent  English  case  affords  an 
example,  where  a  boy,  four  j^ears  old,  coming  from  school, 
saw  a  machine  exposed  for  sale  in  a  public  place,  and  by 
direction  of  his  brother,  seven  years  old,  placed  his  fingers 
within  the  machine  whilst  another  turned  the  crank  and 
thereby  crushed  his  fingers.^  The  court  held  that  no  action 
would  lie.  But  if  the  trespass  of  the  infant  does  not  sub- 
stantially contribute  to  produce  the  injury,  it  would  appear 
that  no  defence  can  be  legally  interposed  on  this  ground.* 
Thus,  the  mere  fact  that  a  youth  gets  upon  a  railroad  car 
intending  to  ride  without  paying  fare  is  held  not  to  bring  the 
case  within  the  rule  of  contributory  negligence.'^ 

§  429.  Same  Subject;  Contributory  Negligence  of  Parent, 
Protector,  &c.  —  Another  and  the  more  common  class  of 
exceptions  consists  of  cases  where  the  parents  or  other  per- 
sons having  charge  of  the  child  have  been  guilty  of  negli- 
gence. The  rule  of  New  York,  Massachusetts,  Illinois,  and 
some  other  States,  is  that  a  child  too  young  to  have  discretion 

1  Carter  r.  Towne,  98  Mass.  567.  *  See  Daley  v.  Norwich  &  Worces- 

2  Byrne  v.  New  York  Central  R.,  83    ter  R.  R.  Co.,  26  Conn.  591. 

N.  Y.  620.  5  Kline  v.  Central  Pacific  R.  R.  Co., 

3  Mangan  v.  Atterton,  L.  R.  1  Ex.     37  Cal.  400. 
239.     And  see  Hughes  v.  McFie,  2  H. 

&C.  744;  33  L.J.  (Ex.)  177. 

608 


CHAP.  IV.]      THE  INJURIES  AND  FRAUDS  OF  INFANTS.      §  429 

for  himself  cannot  recover  if  his  protector  fails  to  exercise 
ordinary  care,  but  that  he  may  if  he  uses  such  care  as  is 
usual  with  cliildren  of  the  same  age,  and  the  protector  exer- 
cises ordinary  care  besides.^  The  English  rule,  as  formerly 
understood,  does  not  take  into  consideration  the  circum- 
stance of  the  protector's  negligence  at  all.^  And  in  Vermont, 
Connecticut,  Ohio,  and  Pennsylvania,  the  child's  exercise  of 
oi'dinary  care  appears  alone  to  be  regarded.^  The  latest  Eng- 
lish cases,  however,  lean  toward  the  doctrine  first  above 
stated.  Thus  when  the  child,  at  tlie  time  of  injury,  was  in 
the  care  of  his  grandmother,  at  a  railroad  station,  where  she 
had  purchased  tickets  for  both,  it  was  held  that  the  plaintiff 
was  so  identified  with  his  grandmother  that,  by  reason  of  her 
negligence,  no  suit  was  maintainable  against  the  company.* 

Where  carelessness  of  a  mother  or  other  protector  is  alleged, 
in  authorizing  an  exposure  of  the  child,  it  may  sometimes  be 
said  that  the  father  or  proper  parent  or  guardian  had  con- 
ferred no  authority.^  To  take  common  illustrations  of  this 
doctrine.  Allowing  a  child  seventeen  months  old  to  be  in 
the  public  street  without  a  suitable  attendant  is  held  to  be  a 
want  of  ordinary  care  on  the  parents'  part,  and  if  the  child 
be  run  over  there  is  no  remedy.^  But  there  are  circum- 
stances under  which  it  would  be  found  that  the  parent  or 
protector  of  such  a  child  was  exercising  ordinarj^  care  ;  while 
the  child  himself  would  be  treated,  doubtless,  as  incapable  of 
personal  negligence  at  so  early  an  age,  so  as  to  defeat  his 
right  of  action.*^     Suffering  a  boy  eight  or  ten  years  old  to 

1  Wright  V.  Maiden  &  Melrose  E.  3  Robinson  v.  Cone,  22  Vt.  213  ; 
Co.,  4  Allen,  283;  Hartfield  v.  Roper,  North  Penn.  R.  R.  Co.  v.  Mahoney,  57 
21  Wend.  617;  Downs  v.  New  York  Penn.  St.  187  ;  Bellefontaine,  &c.  11.  R. 
Central  R.  R.  Co.,  47  N.  Y.  83 ;  Kerr  v.  Co.  v.  Snyder,  18  Ohio  St.  300 ;  Daley 
Forgue,  54  111.  482 ;  Schmidt  v.  Mil-  v.  Norwich  &  Worcester  R.  R.  Co.,  26 
waukie,  &c.  R.  R.  Co.,  23  Wis.  186 ;  Conn.  591.  But  see  Bronson  v.  South- 
O'Flaherty  v.  Union  R.  R.  Co.,  45  JMo.  bury,  37  Conn.  199. 

70  ;  Baltimore,  &c.  R.  R.  Co.  r.  State,  .30  *  Waite  v.  North-Eastern  R.  R. Co.,  5 

Md.  47  ;   Munn  v.  Reed,  4  Allen,  431 ;  Jur.  n.  s.  9.36. 

Lehman  v.  Brooklyn,  29   Barb.   2.36 ;  ^  pierce  v.  Millay,  02  III.  1.33. 

City  of  Chicago  v.  Starr,  42  III.  174.  «  Kreig  >:  Wells,  1  E.  D.  Smith,  74. 

2  Lynch  v.  Nurdin,  1  Q.  B.  29.  7  gee  Mangam  v.  Brooklyn  R.  R. 
Doubted,  however,  in  Lygo  v.  New-  Co.,  38  N.  Y.  455 ;  Schmidt  v.  Milwau- 
bold,  9  Exch.  302.  kie,  &c.  R.  R.  Co.,  23  Wis.  186. 

.39  609 


§429 


THE   DOMESTIC   EELATIONS. 


[part  V. 


play  on  the  street  after  dark  is  not  necessarily  negligence  on 
the  protector's  part.^  And  even  as  to  children  four  years  of 
age  or  thereabouts,  or  perhaps  younger,  it  is  not  expected 
that  parents  who  have  to  labor  for  themselves  and  cannot 
hire  nurses  are  to  be  without  remedy  for  themselves  or  their 
children  every  time  the  child  steps  into  the  street  unattended. 
What  would  be  expected  of  the  custodians  of  these  tender 
beings  is  a  degree  of  care  or  diligence  suitable  to  the  capa- 
city of  the  child  ;  in  other  words,  ordinarj^  care  and  prudence 
in  watching  and  controlling  the  child's  movements.^  As  to 
a  chikl  some  twelve  years  of  age  travelling  with  his  mother, 
and  injured  in  stepping  between  cars,  the  right  to  sue  is  not 
necessarilj^  defeated  for  the  reason  that  she  permitted  him  to 
go  into  another  car  from  that  where  she  was  sitting,  and  he 
did  so.^  In  fact,  the  circumstances  of  each  case  are  fairly  to 
be  weighed  b}^  the  jury.  No  child  capable  of  running  about 
can  be  kept  tied  up  in  the  house  and  subjected  to  constant 
watch.  The  rule  is  reasonably  and  beneficially  applied  ;  and 
the  circumstances  are  in  general  for  the  jury.* 


1  Lovett  r.  Salem,  &c.  R.  R.  Co.,  9 
Allen,  557. 

2  City  of  Chicago  v.  INIajor,  18  111. 
360;  O'Flaherty  i'.  Union  R.  R.  Co.,  45 
Mo.  70 ;  Baltimore,  &c.  R.  R.  Co.  v. 
State,  ?,0  Md.  47. 

3  Downs  V.  N.  Y.  Central  R.  Co.,  47 
N.  Y.  83. 

*  Tlie  principle  may  be  further  illus- 
trated by  a  liite  Illinois  case.  A  heavy 
counter,  some  eighteen  feet  long  and 
three  feet  high,  wliich  had  been  placed 
across  the  sidewalk  in  one  of  the 
principal  thoroughfares  of  Chicago,  re- 
mained so  for  two  or  three  weeks, 
when  some  children  were  climbing 
upon  it  and  thereby  caused  it  to  fall 
over.  One  of  the  children,  six  years 
old,  was  injured  and  died,  and  the 
parents  sued  the  city,  under  statute, 
for  damages.  The  court  held,  upon 
the  state  of  facts  before  them,  that  the 
action  would  not  lie  because  there  was 
negligence  shown  on  both  sides,  —  on 
the  part  of  the   city  in   allowing  the 

610 


counter  to  remain  in  tliat  situation, 
and  on  the  part  of  the  parents  in  per- 
mitting tlie  child,  at  his  age,  to  roam 
the  crowded  thorougiifares  of  the  city 
at  a  great  distance  from  his  home. 
The  negligence  on  the  part  of  the  city 
was  less  than  that  attributable  to  the 
child's  parents,  and  therefore  there 
could  be  no  recover}'.  City  of  Chi- 
cago V.  Starr,  42  111.  174.  In  this  case 
it  was  further  suggested  that  the  de- 
gree of  carelessness  is  not  to  be  judged 
from  a  single  fatal  accident ;  but  that 
the  question  is  rather  what  would  have 
been  the  course  of  a  prudent  person 
prior  to  the  accident.  And  the  hab- 
itual carelessness  of  the  parents  in  al- 
lowing the  child  to  go  about  unattended 
was  considered  material.  But  see  Kerr 
V.  Forgue,  54  111.  482,  limiting  the  rule. 
Perhaps  the  course  most  consistent 
with  the  latest  authorities  is  to  leave 
the  question  of  negligence,  so  far  as 
possible,  with  the  jury,  upon  the  state 
of  facts  presented. 


CHAP.  IV.]      THE  INJUHIES  AND  FRAUDS  OF  INFANTS,       §  431 

Causa  proxima  non  remota  spectatnr  is  the  maxim  usually 
applied  in  cases  of  torts,  whether  the  phiintiff  be  infant  or 
adult.  But  where  the  tort  is  occasioned  by  the  negligence 
of  one  person,  the  infant  is  not  debarred  of  his  right  to 
sue  the  other  party  who  shared  in  it.  As  where  a  child  too . 
young  to  take  care  of  himself  —  there  being,  we  shall  suppose, 
no  negligence  on  the  part  of  the  parent  —  is  in  danger  of  be- 
ing run  over  by  a  steam-engine,  and  some  stranger  catches 
him  up,  meaning  to  save  his  life,  and  imprudently  rushes  over 
the  track  and  falls  with  the  child.  An  accident  so  occa- 
sioned might,  under  some  such  circumstances,  give  a  right  of 
action  against  either  the  stranger  or  the  railroad  company,  or 
against  them  jointly.^ 

§  430.  Suits  of  Parent  and  Child  for  Injury  ;  Loss  of  Services 
reckoned.  —  We  have  already  seen  that  a  parent  may  sue  for 
damages  caused  his  child  by  another's  wrong,  as  for  loss  of 
his  child's  services  during  the  period  of  minority,  since  such 
services  belong  to  the  parent.^  But  for  damages  to  the 
person  involving  a  permanent  injury  reaching  beyond  one's 
minority,  the  minor  is  entitled  in  his  own  right  to  recom- 
pense for  such  prospective  loss.^ 

§  431.  Arbitration  Compromise,  and  Settlement  of  Injuries 
committed  or  suffered  by  Infants.  —  While  an  infant  is  liable 
for  torts,  it  does  not  follow  that  his  contracts  in  compensa- 
tion for  torts  are  binding.  In  fact,  his  submission  to  an 
award,  and  notes  given  or  money  paid  in  pursuance  thereof, 
would  follow  the  principle  of  void  and  voidable  and  binding 
contracts  ;*  and,  as  we  may  presume,  a  note  or  other  security 
given  to  settle  damages  may  not  be  sued  upon  without  in- 
quiry into  its  consideration,  but  it  shall  be  good  to  the  same 

1  See  North  Penn.  R.  R.  Co.  v.  Ma-  R.,  76  N.  Y.  125 ;  Cooper  v.  State,  8 

honey,  57  Penn.  St.   187.    The  views  Baxt.  324 ; /ws<,  Part  VI. 
expressed  in  this  case  may  not  meet,  in  -  Part  III.  c.  4,  supra. 

all  respects,  the  concurrence  of  other  ^  Central  R.  R.  v.  Brimson,  64    Ga. 

courts  ;  but  the  principle  extracted  in  475,  and  cases  cited, 
the  text  seems  to  the  writer  a  correct  *  Hanlcs   v.   Deal,   3   M'Cord,  257  ; 

one.     See  further,  as  to  slander  of  an  Pitcher  v.  Turin  Plank   Road  Co.,  10 

infant,    Hopkins   v.  Virgin,   11   Bush,  Barb.  436 ;  Ware  v.  Cartledge,  24  Ala. 

677.     As   to  injury   done   to  a  minor  622. 
servant,  see  De  Graff  v.  N.  Y.  Central 

611 


§  433  THE   DOMESTIC    RELATIONS.  [PART   V. 

extent  as  the  tort  wliieh  constituted  its  basis.^  And  on  the 
other  hand,  where  he  releases  or  compromises  for  any  injury 
himself  has  sustained,  the  same  rule  applies.^  The  parent 
cannot  sue,  as  such,  for  the  child's  injuries;  neither  can  he 
make  a  binding  compromise,  except  as  to  his  own  demand 
upon  the  defendant.^ 


CHAPTER   V. 


EATIFICATION     AND    AVOIDANCE     OF     INFANT  S    ACTS     AND 

CONTRACTS. 

§  432.  Infants  may  ratify  or  disafSrm  Voidable  Acts  and 
Contracts. —  That  indulgence  which  the  law  allows  infants, 
to  secure  them  from  the  fraud  and  imposition  of  others,  can 
only  be  intended  for  their  benefit,  and  therefore  persons  of 
riper  years  cannot  take  advantage  of  such  transactions.  The 
infant  may  rescind  or  disaffirm  his  own  deed  or  contract ; 
but  the  adult  with  whom  he  deals  is  held  bound  meantime, 
unless  the  transaction  be  void,  and  not  voidable ;  ^  or  one  of 
those  contracts  which  bind  an  infant  from  the  outset.^ 

But  the  infant  may  confirm  his  voidable  contract  on  arriv- 
ing at  full  age  ;  and  if  he  does  so  by  such  writings,  words,  or 
acts  as  amount  to  a  legal  ratification  or  affirmance,  he  will 
become  liable  then  and  thereafter.  But  what  is  in  law  a 
sufficient  ratification  or  affirmance  remains  to  be  considered. 

§  433.  Rule  affected  by  Statute  ;  Lord  Tenterden's  Act ;  Other 
Statutes.  —  Much  of  the  discussion  on  this  point  is  now  dis- 
pensed with,  or  rather  diverted,  in  England,  by  a  short  statute 
to  the  effect  that  "  no  action  shall  be  maintained  whereby  to 

1  See  Ray  v.  Tubbs,  50  Vt.  688;  *  Smith  v.  Bowen,  1  Mod.  25;  2 
supra,  §  414.  Kent  Com.  236  ;  Warwick  v.  Bruce,  2 

2  Baker  v.  Lovett,  6  Mass.  78.  M.  &  S.  205;   Brown  v.  Caldwell,  10 

3  See  Loomis  ;-.  Cline,  4  Barb.  453  ;  S.  &  R.  114  ;  supra,  c.  2. 
Passenger  R.  R.  Co.  i'.  Stutler,  54  Penn.         &  Supra,  c.  3. 

St.  375.     But  see  Merritt  v.  Williams, 
1  Harp.  Ch.  306. 

612 


CHAP,  v.]      RATIFICATION,  ETC.,  OF   CONTRACTS.  §  433 

charge  any  person  upon  any  promise  made  after  full  age  to  pay 
any  debt  contracted  during  infancy,  or  upon  any  ratification, 
after  fidl  age,  of  any  promise  or  simple  contract  made  during 
infancy,  unless  such  promise  or  ratification  shall  be  made  by 
some  writing,  signed  by  the  party  to  be  charged  therewith."  ^ 
This  statute  is  known  as  Lord  Tenterden's  Act.  Here  is  a 
clear,  precise,  and  definite  rule ;  and  any  apparent  want  of 
equity  is  compensated  by  the  certainty  with  which  a  very 
troublesome  subject  is  managed,  one  which  has  so  constantly 
led  to  unprofitable  litigation.  The  same  or  similar  provisions 
are  to  be  found  in  the  laws  of  some  of  our  States.^ 

But  even  statutes  will  raise  legal  difficulties.  And  the 
difficulty  which  arises  under  this  particular  act  is  to  distin- 
guish ratification  from  a  new  promise.  What  is  meant  by  a 
"  ratification  "  in  the  words  of  this  statute  ?  The  Court  of 
Exchequer,  some  years  since,  admitting,  in  the  course  of 
argument,  that  the  statute  made  a  distinction  between  ratifi- 
cation and  new  promises,  gave  it  as  their  opinion  that  any 
act  or  declaration  which  recognizes  the  existence  of  a  promise 
as  binding,  is  a  ratification  of  it ;  and  that  the  statute  ''  rati- 
fication "  goes  so  far  as  to  comprehend  such  a  ratification  as 
would  make  a  person  liable  as  principal  for  an  act  done  by 
another  in  his  name.^  And  hence  certain  letters  written  by 
the  defendant  in  reference  to  payment  of  his  debt  out  of  his 
money  in  the  hands  of  a  third  party  were  held  binding.  More 
lately  this  definition  of  ratification  was  reconsidered  by  the 
same  court  in  another  case,  where  the  correspondence  was 
over  a  dishonored  bill  of  exchange,  and  another  person,  not 
the  infant,  was  to  be  primarily  liable  ;  and  tlie  judges  were 
divided  in  opinion.  But  the  disposition  seemed  to  be  to 
define  ratification  anew,  as  a  willing  admission  that  the  party 
is  liable  and  bound  to  pay  the  debt  arising  from  a  contract 
which  he  made  when  an  infant.*     Still  later  a  man,  being  of 

1  Stat.  9  Geo.  IV.  c.  14,  §  5  (1828).      Smith  Contr.  287.    Lord  Ellenborough 

2  See  Thurlow  v.  Gilmore,  40  Me.  considered  it  more  correct  to  say,  in 
378.  general,  tliat  tlie  infant  makes  a  new 

3  Harris  v.  Wall,  1  Excli.  122.  promise  after  lie  comes  of  age.     Cohen 
*  Mawson  V.  Blane,  10  E.xch.  206;     ?;.  Armstrong,  1    M.   &  S.  724.     As  to 

26    E.    L.   &  Eq.    560.     See    further,     what  is   a   sufficient  compliance  with 

613 


§  434  THE   DOMESTIC    RELATIONS.  [PART    V. 

age,  signed  the  following  statement  at  the  foot  of  an  account 
of  the  items  and  prices  of  goods  furnished  to  him  while  an 
infant  by  the  plaintiff:  "  Particulars  of  account  to  the  end  of 
1867,  amountizig  to  <£162  lis.  6d.  I  certify  to  be  correct  and 
satisfactor3\"  It  was  held  that  this  was  not  a  suiBcient  rati- 
fication under  the  statute,  because  these  words  did  not  really 
admit  the  debt  to  be  a  debt  existing  and  binding  upon  the 
defendant.^ 

Some  statutes  regard  the  allowance  of  a  reasonable  time 
only  after  attaining  majority  for  disaffirmance  of  a  contract 
made  in  infancy,  requiring  the  infant  both  to  disaffirm  and  to 
make  restitution.^  Others  seek  to  prevent  sales  of  the 
minor's  property  for  some  time  after  he  reaches  majority.^ 

§  434.  Rule  Independent  of  Statute;  American  Doctrine. — 
Independently  of  all  statutes,  however,  the  question  has  been 
asked  again  and  again,  what  language  and  what  conduct  on 
the  part  of  the  infant  attaining  to  majority  will  suffice  to 
give  binding  force  to  his  acts  originally  voidable.  The  Amer- 
ican cases  on  this  point  are  very  numerous.  And  it  must  be 
confessed  that  the  more  this  subject  has  been  discussed,  the 
less  it  appears  to  be  understood.  Two  principles  are  evi- 
dently in  conflict:  the  one,  that  an  infant  should  be  protected 
against  his  own  imprudence  while  under  a  disability  ;  the 
other,  that  bona  fide  creditors  ought  not  to  be  cheated.  Some 
cases  have  given  more  prominence  to  the  first  principle, 
others  to  the  second. 

There  cannot  be  much  doubt  that  at  the  time  Lord  Tenter- 
den's  Act  was  passed,  the  English  rule  was,  that  an  infant 
might,  by  his  general   conduct,  independently  of  a  precise 

the  statute,  see  Hartley  I'.  Wharton,  11  385.    As   to  ratifying  as   "a  debt  of 

Ad.    &  El.    9-34 ;   Hyde  v.  Johnson,  2  honor,"    see    Maccord   v.   Osborne,    1 

Bing.  N.  C.  778;  Hunt  v.  Massey,  5  C.  P.  D.  560.     And  see  7»i  re  Onslow, 

B.  &  Ad.  902.  L.  R.  10  Ch.   373.     The  inclination  of 

See  also  Infants' Relief  Act  of  1874  these   late   Englisli   cases   is   to   insist 

(.37  &  38  Vict.  c.  62).    As  to  what  eon-  upon  sometliing  like  a  fresh  promise  in 

stitutes  ratification  or  a  fresh  promise  order  to  bind. 

upon  majority,  under  Englisli  statutes,  ^  IJowe  v.  Hopwood,  L.  R.  4  Q.  B.  1. 

of  an   infant's  promise  to  marrj',  see  -  Wright  r.  Germain,  21  Iowa,  585; 

Ditcham  v.  Worrall,   5  C.  P.  D.  410;  Jones  i\  Jones,  40  Iowa,  466. 
Northcote  v.  Doughty,  L.  R.  4  C.  P.  D.  ^  goullier  v.  Keru,  69  Penn.  St.  16. 

614 


CHAP,  v.]       RATIFICATION,  ETC.,  OF    CONTRACTS.  §  434 

promise  or  new  contract,  on  his  part,  render  himself  liable  for 
his  contracts  made  while  an  infant.^  The  statute  was  passed 
to  change  this  rule.  On  that  point  we  need  not  dwell.  This 
does  not  bind  American  courts,  it  is  true,  for  they  had 
adopted,  in  man}^  instances,  another  rule  of  the  common  law 
to  which  they  were  at  liberty  to  adhere,  in  spite  of  the  later 
English  decisions ;  since  it  was  the  rule  our  ancestors  brought 
over  with  them. 

Now,  what  is  the  American  doctrine  ?  We  take  a  case  de- 
cided within  a  few  years  in  Massachusetts,  where  an  infant 
had  made  a  promissory  note,  and  after  majority  admitted 
several  times  that  he  owed  the  debt,  and  said  he  would  pay 
it  when  he  could.  Says  the  court:  "It  has  long  been  settled 
that  a  direct  promise,  when  of  age,  is  necessary  to  establish  a 
contract  made  during  minority,  and  that  a  mere  acknowledg- 
ment will  not  have  that  effect."  ^  We  take  still  another, 
decided  in  New  York  only  a  little  later.  Says  a  judge  of  the 
Court  of  Appeals,  after  a  most  exhaustive  review  of  the  cases : 
"I  think  that  the  course  of  decision  in  this  State  authorizes 
us  to  assume  that  the  narrow  and  stringent  rule,  formerly 
enunciated,  that  to  establish  the  contract,  when  made  in  in- 
fancy, there  must  be  a  precise  and  positive  jDromise  to  pay  the 
particular  debt,  after  attaining  majority,  is  not  sustained  by 
the  more  modern  decisions."  ^  Time  has  not  with  us  lessened 
the  force  of  Chancellor  Kent's  observation,  many  years  ago, 
that  "  the  books  appear  to  leave  the  question  in  some  ob- 
scurit3^  when  and  to  what  extent  a  positive  act  on  the  part 
of  the  infant  is  requisite."  * 

It  may  be  remarked  that  a  great  change  was  gradually 
developed  in  the  law  of  infancy,  by  making  contracts  void- 
able which  before  were  deemed  void.^  This  might  reasonably 
be  thought  to  have  introduced  a  new  element  into  the  consid- 
eration of  such  cases  ;  the  result  tending  towards  freedom  in 
the  courts,  and  enabling   them  to  repudiate  artificial  refine- 

1  See  Goode  y.  Harrison,  5  B.  &  Aid.  ^  p^r  Davies,  J.,  Henry  v.  Root,  33 
147  ;  Smith  Contr.  283,  284.  N.  Y.  54b  (1865). 

2  Proctor  V.  Sears, 4  Allen,  95  (18G2),         «  2  Kent  Com.  237. 
per  Metcalf,  J.  ^  See  c.  2,  supra. 

615 


§  435  THE   DOMESTIC   RELATIONS.  [PAET   V. 

ments  and  do  substantial  justice.  It  certainly  throws  upon 
the  modern  courts  a  greater  responsibility  than  formerly  in 
ruling  between  complete  and  incomplete  ratification  ;  or  (if 
legal  precision  requires  another  expression),  in  determining 
whether  a  new  promise  has  passed  from  the  person  after 
attaining  full  age.  But  this  change  has  not  always  been  kept 
in  view.  In  New  York  the  modern  doctrine  is  that  ratifica- 
tion or  confirmation  of  the  contract  made  in  infancy  will  bind 
the  party  if  it  take  place  after  his  coming  of  age  ;  tliat  a  new 
promise,  positive  and  precise,  equivalent  to  a  new  contract,  is 
not  now  essential ;  but  that  a  ratification  or  confirmation  of 
what  was  done  during  the  minority  is  sufficient  to  make  tlie 
contract  obligatory.^  And  it  is  well  observed  that  the  Avords 
"  ratify  and  confirm  "  necessaril}^  import  that  there  was  some- 
thing in  existence  to  wliich  the  ratification  or  confirmation 
could  attach,  entirely  ignoring  therefore  the  notion  that  an 
infant's  obligations  or  contracts  were  extinguished  by  the 
state  of  infancy .2  But  it  must  be  borne  in  mind  that  in  some 
other  States  tlie  rule  is  quite  different.  So  that  we  have 
nothing  which  may  safely  be  pronounced  the  American  doc- 
trine upon  this  subject. 

§  435.  The  Same  Subject ;  Instances.  —  It  seems  settled 
that  silence  for  an  unreasonable  time,  taken  in  connection 
with  other  facts,  such  as  using  the  i^roperty  purchased,  re- 
taining possession  of  it,  selling  or  mortgaging  it,  or  in  any 
way  converting  it  to  the  infant  purchaser's  own  use,  would 
be  sufficient  ratification  to  bind  the  infant  after  reacliiug  man- 
hood.3  ^g  where  a  minor  bought  a  yoke  of  oxen,  for  which 
he  gave  his  note,  and  after  arriving  at  full  age  converted  the 
oxen  to  his  own  use  and  received  the  avails.*  Mere  lapse  of 
time,  it  is  true,  will  not  usually  amount  to  confirmation,  unless 


1  Henry  v.  Root,  33  N.  Y.  526.  *  Lawson    v.  Lovejoy,   8  Me.  405. 

2  lb.  And  see    Alexander  v.   Heriot,  1  Bail. 

3  See  note  Am.  editor  in  10  E.  L.  &  Ch.  223  ;  Deason  v.  Boyd,  1  Dana,  45  ; 
Eq.  558 ;  Lawson  v.  Lovejoy,  8  .Me.  405 ;  Vandevort's  Appeal,  43  Penn.  St.  462  ; 
Boy  den  f.  Boyden,  9  Met.  519;  Che-  Stern  v.  Freeman,  4  Met.  (Ky.)309; 
shire  v.  Barrett,  4  M'Cord,  241 ;  Boody  Belton  v.  Briggs,  4  Desaus.  465. 

V.  McKenney,  23  Me.  517  ;    Robinson 
V.  Hoskins,  14  Bush,  393. 

616 


CHAP,  v.]       RATIFICATION,  ETC.,  OF   CONTRACTS.  §  435 

the  complete  bur  of  limitations  is  fulfilled.^  But  a  brief  lapse 
of  time,  in  connection  with  other  circumstances,  may  amount 
to  confirmation.^  And  cases  are  not  wanting  to  establish  the 
position  that  ratification  will  be  inferred  from  tacit  assent 
and  delay  under  circumstances  where  silence  is  not  excusable, 
where  there  was  full  knowledge  and  opportunity  to  assert 
one's  rights,  and  the  party  whose  title  might  have  been  dis- 
puted was  permitted  to  go  on  incurring  expense  on  the  faith 
of  it.3 

Yet  that  the  cases  are  somewhat  conflicting  and  difiicult  in 
this  respect  to  be  rconciled  will  appear  from  the  citation  of  a 
few.  In  Alabama,  an  infant,  ten  days  before  majority,  pur- 
chased a  note  and  drew  an  order  upon  a  third  person  in  pay- 
ment, and  received  notice  of  non-payment.  It  was  held,  in  a 
suit  several  years  after,  that  his  failure  to  renew  the  note  and 
disafiirm  warranted  the  conclusion  that  he  intended  to  abide 
by  it.*  Still  more  rigidly  was  the  same  doctrine  enforced  in 
an  earlier  New  York  case.^  Part-payment,  or  even  promise 
of  part-payment,  may  operate  as  confirmation.^  So  may  author- 
ity given  to  an  agent  to  pay,  though  the  agent  does  nothing.''' 
But  declarations  of  affirmance  by  one  purporting  to  act  as  the 
attorney  or  solicitor  of  the  late  infant  do  not  amount  to  rati- 
fication if  his  authority  be  not  proved.*^  Submitting  the  ques- 
tion of  liability  after  coming  of  age  to  arbitration  does  not 
amount  to  ratification.^  But  letters  indicating  intent  to  abide 
by  a  former  award  may  ;  as  well  as  the  enjoyment  of  its  bene- 
fits.^'' So  may  permitting  an  action  growing  out  of  the  trans- 
action to  go  by  default,  or  a  bill  in  equity  to  be  taken  as 
confessed. ^^  A  promise  to  settle  by  note  against  a  third  party 
is  held  sufficient. 12    So  is  a  promise  to  settle  by  work.^^   Nor 

A  Wallace  v.  Latham,  52  Miss.  291;  6  Little  i-.  Duncan,  9  Kich.  Law,  55; 

Prout  V.  Willey,  28  Midi.  164.  Stokes  i-.  Brown,  4  Cliand.  (Wis.)  39. 

'^  Cresinger  v.  Welch,  15  Ohio,  156  ;  1  Orvis  v.  Kimball,  3  N.  H.  314. 

Strong,  J.,  in  Irvine  v.  Irvine,  9  Wall.  8  Carrell  v.  Potter,  23  Mich.  377. 

617.  9  Benhara  v.  Bishop,  9  Conn.  330. 

8  See  post,  Eatification    as  to  Real  ^^  Barnaby  v.  Barnaby,  1  Pick.  221 ; 

Estate ;  Allen  v.  Poole,  54  Miss.  323.  Jones  v.  Phoenix  Bank,  4  Sehl.  228. 

4  Thomasson  v.  Boyd,  13  Ala.  419.  ^i  Terry  v.  McClintock,  41  Mich.  492, 

5  Delano  v.  Blake,  11  Wend.  85.  12  Taft  v.  Sergeant,  18  Barb.  820. 

13  Edgerly  v.  Shaw,  5  Fost.  514. 

617 


§  435  THE   DOMESTIC   RELATIONS.  [PAKT   V. 

do  the  recent  cases  seem  to  require  that  a  promise  to  settle 
should  be  very  precisely  expressed.  The  mere  retention  of 
consideration-money  received  during  infancy  apj^ears  to 
amount  to  ratification  in  California ;  ^  but  this  is  not  the  gen- 
eral rule  elsewhere.^  Keeping  and  using  an  article  purchased 
during  infanc}^  with  equivocal  expressions  of  intention,  may 
bind  the  infant  so  that  he  cannot  return  it  afterwards  to  the 
vendor.  So  may  a  sale  of  the  article  with  full  knowledge  of 
the  fact  of  purchase.^  So  may  reception  and  enjoyment  of 
the  benefits  of  the  transaction  after  reaching  majority,  such 
as  collecting  dividends  or  interest,*  or  receiving  the  prin- 
cipal, or  other  act  totally  inconsistent  with  an  intention  to 
disaffirm.  A  verbal  promise  is  sufficient  to  bind.^  A  con- 
tract to  work  is  ratified  by  continuance  in  the  emplo3'er's 
service  for  a  month  after  attaining  full  age.^  Plea  of  the 
execution  of  a  note,  in  defence  of  a  suit  in  assumpsit,  is  held 
to  be  confirmation  of  the  note  itself.'^  Slight  words,  importing 
recognition  and  confirmation  of  the  promise,  have  been  treated 
as  sufficient ;  or,  at  least,  as  sufficient  for  a  jury  to  consider.^ 
And,  according  to  a  recent  decision  of  the  Supreme  Court  of 
the  United  States,  it  is  a  question  for  the  jury  and  not  for  the 
court  to  decide,  whether  the  evidence  submitted  in  any  case 
shows  an  affirmance  or  not,  if  there  be  any  evidence  tending 
to  show  it.^ 

On  the  other  hand  are  numerous  decisions  which  seem  to 
bear  against  the  creditor.  Says  a  Massachusetts  judge  in  an 
early  case :  "  By  the  authorities  a  mere  acknowledgment  of 
the  debt,  such  as  would  take  a  case  out  of  the  statute  of 
limitations,  is  not  a  ratification  of  a  contract  made  during 
minority."  ^^     Yet  the  much-quoted   distinction  there  taken 

1  Hastings  v.  Dollarhide,  24  Cal.  195.  ^  yv^gst  v.  Penny,  16  Ala.  186 ;  Mar- 

2  Benhain  v.  Bisliop,   9  Conn.  330.    tin  v.  Mayo,  10  Mass.  137. 

See  §  4^G  post,  as  to  restoring  the  con-         ^  Forsyth  v.  Hastings,  27  Vt.  646. 
sideration.  '  Best  v.  Givens,  3  B.  Monr.  72. 

3  Shropshire  v.  Burns,  46  Ala.  »  Hoit  v.  Underhill,  9  N.  H.  4.36; 
108.  Bay  v.  Gunn,  1  Deqio,  108  ;  Whitney  v. 

4  Huth  V.  Carondolet  R.,  56  Mo.  202  ;  Dutch,  14  Mass.  457. 

Price  V.  Winter,  15  Fla.  66;  Corwin  v.  ^  Irvine  v.  Irvine,  9  Wall.  C17,  628. 
Shoup,  76111.  246.  ^^  Whitney  v.  Dutch,.  14  Mass.  400, 


per  Parker,  C.  J. 


618 


CHAP,  v.]       BATIFICATION,  ETC.,  OF    CONTRACTS.  §  436 

between  "acknowledgment  "  that  a  debt  is  due,  and  verbal 
"  ratification  and  confirmation  "  is  either  exceedingly  subtile, 
or  at  the  present  day  frequently  misapplied.  The  distinction 
further  developed  leads,  as  we  find,  to  the  conclusion  tliat 
where  one  says  he  owes  the  debt  and  has  not  the  means 
of  payment,  but  will  pay  as  soon  as  able,  or  words  to  this 
effect,  this  is  only  an  acknowledgment,  and  not  binding.^ 
Such  decisions  do  not  always  support  the  explanation  some- 
times given,  that  the  American  cases  proceed  upon  the  ground 
of  intention  to  ratify  ;  though  there  are  doubtless  cases  which 
support  so  reasonable  a  view.^ 

§436.  The  Same  Subject;  Conflicting  Dicta. — What  is  it 
that  suffices  to  take  a  case  out  of  the  statute  of  limitations  ? 
"  Either  an  express  promise  to  pay,  or  an  unqualified 
acknowledgment  of  present  indebtedness  ;  in  which  latter 
case  the  law  ivill  imply  a  promise  topayT  ^  What  is  ratifica- 
tion of  a  contract  ?  So  far  as  a  definition  may  be  hazarded, 
it  is  a  voluntary  admission  that  one  is  liable  and  bound  by 
the  terms  of  an  existing  though  inchoate  or  imperfect  con- 
tract. A  debt  is,  of  course,  created  by  contract  express  or 
implied.  But  some  say  that  there  must  always  be  a  new 
contract  made  by  the  minor  on  reaching  majority.  To  hold 
that  a  new  contract  for  payment  is  essential,  differs  certainly 
from  ruling  that  ratification  and  confirmation  of  an  existing 
contract  binds  one  who  was  lately  an  infant.  But  once 
again  such  contracts  of  an  infant  are  called  voidable.  Does 
not  the  term  "  voidable "  imply  something  still  different  ? 
something  which  binds  until  expressly  repudiated  ?  And  if 
so,  how  doubly  inconsistent  to  exact  a  specific  promise  to 
pay,  over  and  above  an  admission  of  present  indebtedness. 
In  truth,  the  law  is  here  overburdened  with  its  own  defini- 


1  See  Proctor  v.  Sears,  4  Allen,  95 ;  Kelly,  18  Met.  309.   And  see  note  to  16 

Tlionipson  v.  Lay,  4  Pick.  48 ;  Ford  v.  E.  L.  &  Eq.  558. 

Phillips,  1  Pick.  203  ;  Hall  v.  Gerrisli,  8  3  gee  Galley  v.  Crane,  21  Pick.  523; 

N.  11.  374  ;  Goodsell  y.  Myers,  3  Wend.  Wakeman   v.    Sherman,   5    Seld.    91; 

479;  Wilcox  v.  Roath,  12  Conn.  550;  Marsliall,    C.   J.,    in     Clenienstine     v. 

Chandler  v.  Glover,  32  Penn.  St.  509.  Williamson,  8   Crancli,  72  ;   Story,  J., 

'^  See  Thing  v.  Libbey,  16  Me.  55;  in  Bell  v.  Morrison,  1  Pet.  351. 
Dana  v.  Stearns,  3  Cush.  372  ;  Smith  v. 

619 


§  437  THE  DOMESTIC   RELATIONS.  [PART   V. 

tions  ;  judicial  terms,  inconsistent  and  varied,  bewilder  the 
judicial  mind  ;  and  thankless,  indeed,  must  be  the  task  of 
refining  upon  distinctions  which  rest  upon  no  rational  basis 
of  difference.^ 

§437.  The  Same  Subject;  Summary  of  Doctrine.  —  The 
writer  makes  no  attempt  to  reconcile  the  numerous  dicta  of 
the  courts  on  this  important  subject.  They  are  irreconcil- 
able. If  American  decisions  themselves  may  be  regarded 
as  pointing  out  a  general  rule,  it  seems  to  be  this:  that  the 
mere  acknowledgment  that  a  certain  transaction  constitutes 
a  debt  is  insufficient  to  bind  him  lately  an  infant ;  but  that 
an  acknowledgment  to  the  extent  that  he  justly  Qwes  that 
debt,  with  equivocal  expressions  as  to  some  future  payment, 
may  or  may  not  be  considered  sufficient,  though  the  better 
opinion  is  in  favor  of  their  sufficiency  ;  that  acts  or  omissions 
on  his  part,  which  are  prejudicial  to  the  adult  party's  inter- 
ests, or  evince  his  own  intention  to  retain  the  advantages  of 
a  contract  made  during  infancy,  may  be,  especially  when 
reasonable  time  has  elapsed,  construed  into  a  ratification, 
the  presumption  of  honorable  motives  being  fair  and  reason- 
able under  such  circumstances ;  and  finally,  that  a  distinct, 
unequivocal  promise,  verbal  or  written,  made  after  attaining 
majority,  is  always  sufficient,  this  apparently  superseding  the 
former  promise  altogether.^  In  cases  of  doubt,  moreover,  it 
would  seem  to  be  better  to  treat  the  evidence  presented  as 
constituting  facts  for  the  consideration  of  the  jury,  rather 
than  a  question  of  law  for  the  court  to  pass  upon. 

Some  cases  go  even  farther,  and  require  an  express  repudi- 

1  Lord  Ken3'on  seems  responsible  Am.  editor's  note  to  16  E.  L.  &  Eq. 
for  the  doctrine  that  the  case  of  in-  558;  Bobo  i'.  Hanseli,2  Bail.  114;  Ack- 
fancy  differs  in  essence  from  that  erman  v.  Bunyou,  1  Hilt.  (N.  Y)  58; 
under  the  statute  of  limitations.  He  Vaughan  v.  Pnrr,  20  Ark.  600;  Rich- 
says:  "In  the  case  of  an  infant,  I  ardsoii  !•.  Boright,  9  Vt.  368 ;  Hodges  v. 
shall  hold  an  acknowledgment  not  to  Hunt,  22  Barb.  160  ;  State  v.  I'laisted, 
be  sufficient,  and  require  proof  of  an  43  N.  II.  413  ;  Wright  v.  Steele,  2  N.  H. 
express  prnnme  to  pay,  made  by  the  51;  Conklin  v.  Ogborn,  7  Ind.  553; 
infant,  after  he  had  attained  that  age  Merriam  r.  Wilkins,  6  N.  H.  413  ;  Jones 
when  the  law  presumes  that  he  has  v.  Butler,  30  Barb.  641 ;  Curtin  v.  Pat- 
discretion."  Thrupp  u.  Fielder,  2  Esp.  ton.  11  S.  &  R.  305;  Norris  i;.  Vance, 
628.  3  Rich.  164;    Oswald  v.  Broderick,  1 

2  See  American  cases  collected  in  Clarke  (Iowa),  380. 

620 


CHAP,  v.]      EATIFICATIOX,  ETC.,  OF   CONTRACTS.  §  437 

ation  on  the  infant's  part.  But  this  is  appropriate  only  to 
peculiar  transactions,  and  we  are  not  justified  in  deducing 
therefrom  a  general  principle  that  express  repudiation  is 
necessary  in  all  voidable  contracts  of  an  infant ;  for  the  deci- 
sions certainly  do  not  go  to  this  length,  whatever  the  dicta.^ 
Express  acts  of  disaffirmance  or  repudiation  leave  no  doubt 
of  intention  on  this  point ;  and  they,  of  course,  suffice  to 
avoid  the  contract  made  during  infancy.  As  in  a  sale 
where  one  gives  notice  that  he  considers  the  bargain  void, 
and  offers  to  return  the  consideration.^  There  are  many 
other  ways  in  which  one  may  clearly  disavow  his  intention 
of  carryiug  into  effect  the  contract  made  during  infancy;  and 
if  the  transaction  appears  to  have  been  made  shortly  before 
reaching  majoritj',  and  not  to  be  disadvantageous  to  the  in- 
fant, his  disavowal  ought  not  to  be  inferred  from  his  silence.^ 

A  conditional  promise,  when  of  age,  to  perform  a  contract 
made  during  minority  will  not  sustain  an  action  thereon  with- 
out proof  that  the  condition  has  been  fulfilled.* 

Reasonable  time  for  an  infant,  on  coming  of  age,  to  elect 
to  confirm  or  avoid  the  acts  and  contracts  of  his  minority, 
must  depend  in  each  case  upon  the  particular  circumstances ; 


1  See  Holmes  v.  Blogg,  8  Taunt.  39 ;  binding  ratification  or  election  not  to 
Richardson  r.  Boriglit,  9  Vt.  368 ;  Kline  avoid.  Tobey  v.  Wood,  123  Mass.  88. 
V.  Beebe,  6  Conn.  494  ;  Hoit  v.  Under-  Nor  a  transaction  only  remotely  con- 
hill,  9  N.  H.  439.  nected  with  tlie  transaction  to  which 
2  See  Willis  v.  Twombly,  13  Mass.  he  was  a  party  in  infancy.  Todd  v. 
204;  Aldrich  r.  Grimes,  10  N.  H.  194;  Clapp,  118  Mass.  495.  Notice  of  dis- 
Williams  v.  Norris,  2  Litt.  157  ;  Hill  affirmance,  given  in  writing,  will  suffice, 
r.  Anderson,  5  S.  &  M.  216;  M'Gill  v.  Scranton  v.  Stewart,  52  Ind.  69,  92. 
Woodward,  3  Brev.  401 ;  Scranton  v.  Especially  if  this  be  consistently  fol- 
Stewart,  52  Ind.  69,  92.  lowed  up  by  acts  of  ownersliip  or  such 
8  Davis  I'.  Dudley,  70  Me.  266.  as  in.licate  a  claim  of  title  adverse  to 
Non-assertion  of  rights  in  a  court  of  the  transaction  of  infancy.  Tunison  y. 
justice,  where  the  courts  are  closed  dur-  Chambly,  88  111.  378.  Suing  to  set  aside 
ing  war,  cannot  be  construed  into  con-  the  transaction  is  a  disaffirmance.  Gil- 
firmation.  Thompson  ?•.  Strickland,  52  lespie  v.  Bailey,  12  AV.  Va.  70.  And 
Miss.  674.  Nor  can  statements  of  record  see  §§  441,  442  post ;  Baker  v.  Kennett, 
evidently  referring  to  personal  property  54  Mo.  82. 

be  taken  as  confirmation  of  a  convey-  *  Proctor  r.  Sears,  4  Allen.  05;  Ever- 

ance  of  real  estate.      Illinois  Land  Co.  son  v.  Carpenter,  17  Wend.  419 ;  Chand- 

V.  Bonner,  75  Hi.  315.     Equivocal  acts  ler  i?.  Glover,  32  Penn.  Sr.  509;  Huth  v, 

very  shortly   after  attaining  majority  Carondolet  R.,  56  Mo.  202. 
should  not  be  construed  readily  into  a 

621 


§  438  THE   DOMESTIC   RELATIONS.  [PART   V. 

and  in  all  cases  the  mental  operation  of  election  at  majority, 
whether  outwardly  manifested  more  or  less  plainly,  and 
whether  actually  proved  or  to  be  conclusively  assumed 
from  long  lapse  of  time  and  silence,  is  the  fact  to  be  legally 
establislied  or  inferred.^  And  such  election  once  made  is 
irrevocable.^ 

§  438.  Rule  as  to  Conveyance  of  Infant's  Lands,  Lease,  Mort- 
gage, &c.  —  Apply  the  rule  of  ratification  or  avoidance  to  the  in- 
fant's lands.  If  an  infant  makes  a  lease  of  his  land  (which  is 
voidable  if  for  his  benefit,  but  not  otherwise),  and  accepts  rent 
after  attaining  full  age,  and  by  other  slight  acts  affirms  the 
transaction,  this  is  a  ratification,  and  he  cannot  afterwards  dis- 
affirm.3  And  where  a  minor  mortgaged  his  land,  and  on 
coming  of  age  conveys  it  to  another  person  in  fee,  subject  to 
the  mortgage,  which  he  recognizes  in  the  second  deed,  it  is 
held  to  be  a  ratification  of  the  mortgage.*  Ratification  of  a 
conveyance  is  ratification  of  the  mortgage  made  to  secure 
payment ;  he  cannot  repudiate  the  one  and  not  the  other.^ 
So  slight  acts  of  assent  on  the  infant's  part  are  held  sufficient 
to  confirm  leases  made  by  a  guardian  beyond  the  term  of  his 
authority .°  But  an  act  of  the  late  infant,  clearly  showing  his 
intention  not  to  be  bound  by  his  mortgage,  is  a  sufficient  avoid- 
ance of  it.'  A  prompt  declaration  of  his  intention  to  disaffirm, 
and  a  conveyance  to  another,  will  answer.^  The  execution  of  a 
warranty  deed  to  another  without  reservation  of  the  mortgage 
incumbrance  imports  a  disaffirmance  of  the  mortgage.^ 

1  Parke,  B.,  says  in  Williams  v.  3  As],fleld  y.  Ashfield,  W.  Jones,157  ; 
Moor,  11  M.  &  W.  256,  265,  that  the  Wimberley  v.  Jones,  1  Ga.  Dec.  91. 
principle  on  which  the  law  allows  a  *  Boston  Bank  v.  Chamberlin,  15 
party  who  has  reached  twenty-one  to  Mass.  220 ;  Story  v.  Johnson,  2  You.  & 
give  validity  to  contracts  entered  into  Coll.  Exch.  607;  Phillips  v.  Green,  5 
during  his  infancy,  is,  that  he  is  sup-  Monr.  355 ;  Lynde  v.  Budd,  2  Paige, 
posed  to  have   acquired  the  power  of  191. 

deciding  for  himself  whether  the  trans-  ^  Young  v.  McKee,  13  Mich.  552; 

action   in  question  is  of  a  meritorious  Bigelow  v.  Kinney,  3  Vt.  353;  Robbins 

character  by  which  in  good  conscience  v.  Eaton,  10  N.  H.  561. 
he  ought  to  be  bound.  "^  See  Smith  v.  Low,  1  Atk.  489. 

2  If  evidence  of  express  disaffirm-         ^  state  v.  Plaisted,  43  N.  H.  413. 
ance  is  sliown,  acts  tending  to  prove  ^  White  v.   Flora,  2  Overton,  426; 
a  prior  full  affirmance  may  be  shown  Hoyle  v.  Stowe,  2  Dev.  &  Bat.  320. 
likewise.     Scrauton  v.  Stewart,  52  Ind.         9  Dixon  v.  Merritt,  21  Minn.  196 ; 
69,  92.  Allen  v.  Poole,  54  Miss.  323. 

622 


CHAP,  v.]      RATIFICATION,  ETC.,  OF   CONTRACTS.  §  439 

As  to  the  infant's  mortgage,  it  may  be  further  remarked 
that  a  minor  cannot  avoid  a  mortgage  gi-ven  to  secure  either 
real  or  personal  property  purchased  by  him  without  avoiding 
the  sale  also.^  The  purchase  and  mortgage  back  constitute 
one  transaction.  And  an  assignment  of  the  mortgage  will 
carry  to  the  assignee  all  the  mortgagee's  rights,  whether  the 
infant  affirms  or  disaffirms.^  The  subsequent  ratification  of 
a  mortgage,  as  of  other  deeds,  relates  back  to  the  first  de- 
livery, so  as  to  affect  all  intermediate  persons,  except  pur- 
chasers for  a  valuable  consideration.^  And  where  a  loan  of 
money  was  made  to  an  infant  for  which  he  executed  a  bond 
and  mortgage,  and  in  a  will  made  after  he  became  of  age 
directed  the  payment  of  "  all  his  just  debts "  and  died,  it 
was  held  that  the  will  sufficiently  confirmed  the  mortgage.* 
Even  notes  given  for  the  purchase-money  of  land,  not  secured 
by  mortgage,  have  been  equitably  enforced;  and  the  court 
has  refused  to  permit  the  notes  to  be  disaffirmed  and  the  land 
reclaimed.^  And  yet  the  retention,  after  reaching  majorit}^ 
of  the  proceeds  of  land  purchased  and  afterwards  sold  by  the 
person  while  an  infant,  is  not  of  itself  sufficient  to  render 
him  liable  upon  his  covenant  to  pay  an  outstanding  mortgage 
upon  the  land  which  he  had  assumed  as  part  of  the  considera- 
tion of  his  purchase.*^  But  allowing  the  mortgage  to  be  fore- 
closed after  majority,  and  a  bill  of  foreclosure  to  be  taken  as 
confessed,  may  defeat  the  infant's  equity.'^ 

§  439.  Same  Subject ;  Infant's  Conveyance,  Lapse  of  Time, 
Sec.  —  It  would  seem  that  the  infant  is  not  precluded  from 
disaffirming  his  conveyance  of  real  estate  by  the  mere  lapse 
of  time.  Laches  is  not  imputable  to  an  infant.^  Where  land 
had  been  sold  by  an  infant,  it  was  said  in  a  Connecticut  case, 
years  ago,  the  period  of  acquiescence  being  thirty -five  years, 
that  the  infant  ought  to  declare  his  disaffirmance  within  a 
reasonable  time ;  and  similar  dicta  may  be  found  in  other 

1  Heath  v.  West,  8  Fost.  101 ;  Dana         6  ^eed  v.  Beebe,  21  Vt.  495. 
V.  Coombs,  6  Greenl.  89.  6  Walsh  v.  Powers,  43  N.  Y.  23. 

2  Ottman  r.  Moak,  3  Sandf.  Ch.  431.  7  Terry   v.    McClintock,    41    Mich. 

3  Pahiier  v.  Miller,  25  Barb.  399.  492. 

4  Merchants'  Fire  Ins.  Co.  v.  Grant,  2         8  Smith  v.  Sackett,  6  Gilm.  534. 
Edw.  Ch.  544. 

623 


§  439  THE   DOMESTIC   EELATIOXS.  [PART   V. 

courts ;  but  there  seems  to  be  no  doubt  upon  the  decided 
cases,  that  mere  acquiescence  is  no  confirmation  of  a  sale  of 
lands  unless  it  has  been  prolonged  for  the  statutory  period  of 
limitation ;  and  that  an  avoidance  may  be  made  any  time 
before  the  statute  has  barred  an  entry. ^ 

Whatever  might  be  the  effect  of  an  infant's  own  fraud,  as 
against  bimself,  it  would  appear  that  a  subsequent  purchaser 
or  mortgagee  in  good  faith  and  for  a  valuable  consideration, 
will  hold  his  title  as  against  a  deed  made  by  the  owner  during 
his  minority,  of  which  he  has  received  neither  actual  nor  con- 
structive notice  ;  and  this,  too,  notwithstanding  ratification  or 
fraud  of  the  minor  might  have  rendered  that  deed  valid.^ 

Yet  lapse  of  time,  together  with  slight  circumstances,  have 
in  many  instances  sufficed  to  sustain  an  infant's  deed.  A 
Missouri  case,  indeed,  holds  that  mere  declarations  or  a  prom- 
ise upon  contingency  will  not  ratify  and  confirm.^  Bat  the 
authorities  generally  manifest  extreme  repugnance  at  setting 
aside  a  solemn  conveyance  of  land  and  reopening  beneficial 
transactions,  merely"  to  suit  the  caprice  or  dishonorable  intent 
of  infants.*  This  may  explain  another  dictum  to  the  effect 
that  an  infant's  deed  will  be  confirmed  hy  any  deliberate  act 
after  he  becomes  of  age,  by  which  he  takes  benefit  under  it 
or  recognizes  its  validity  ;  ^  which  is  not  without  i^reoedents 
for  support.  Thus,  in  some  instances  where  the  infant,  after 
coming  of  age,  saw  the  purchaser  make  valuable  improve- 
ments and  incur  considerable  expense,  and  said  nothing  for 
years,  he  was  held  bound .^     So,  too,  it  would  seem,  where 

1  1  Am.  Lead.  Cas.  4th  ed.  256  ;  Met.         2  Black  v.  Hills,  36  III.  376 ;  Inman 

Contr.  60,  (51,  and  cases  cited  ;  Tucker  v.  Inman,  L.  R.iL5  Eq.  200;  Weaver  v. 

V.  Moreland,  10  Pet.  58  ;  Boody  ;.'.  Mc-  Carpenter,  42  Iowa,  343. 
Kenney,  23  Me.  517 ;  Drake  w  Ramsay,  *  Glamorgan   v.   Lane,   9  Mo.  446; 

5  Ohio,  251  ;    Jackson  v.   Burchin,  14  And   see   Davidson   v.  Young,  38  III. 

Johns.  124;  Urban  v.  Grimes,  2  Grant,  145. 

96 ;  Vauglian    v.    Parr,  20  Ark.  600 ;         *  See  cases  cited  in  preceding  para- 

Voorhies  v.   Voorhies,  24  Barb.   150 ;  graph. 

"Ware  v.  Brush,  1  McLean,  533 ;  Moore         ^  McCormic    v.   Lcggett,   8  Jones, 

V.  Abernetliy,  7  Blackf.  442;   Cole  v.  425. 

Pennoyer,    14    III.    158;    Gille.spie    v.         6  wheaton    v.  Enst,   5   Yerg.    41; 

Bailey,  12  W.  Va.  70  (the  case  of  an  Wallace  r.  Lewis,  4  Harring.  75;  Jones 

infant  tenant  in  common) ;   Wallace  v.  v.  Phenix  Bank,  4  Seld.  235;  Davis  v. 

Latham,  52  Wis.  291 ;  Prout  v.  Wiley,  Dudley,  70  Me.  230. 
28  Mich.  164. 

624 


CHAP,  v.]       RATIFICATION,  ETC.,  OF   CONTRACTS.  §  440 

one  knowing  his  title,  permits  another  to  purchase  without 
giving  notice  of  his  claim. ^  While  mere  lapse  of  time  less 
than  the  statute  period  will  not  suffice,  yet  the  lapse  of  a  less 
period  in  connection  with  such  circumstances  may.  A  tri- 
bunal of  justice  may  properly  decline  to  become  the  instru- 
ment of  a  knave.  So,  in  Illinois,  and  some  other  States,  the 
statute  makes  convej'ances  of  a  minor  binding,  unless  dis- 
affirmed and  repudiated  within  a  certain  period,  say  three 
years  after  reaching  majority.^  In  short,  there  is,  according 
to  the  best  authorities,  a  well-recognized  distinction  between 
the  nature  of  those  acts  which  are  necessary  to  avoid  an  in- 
fant's deed,  and  those  which  are  sufficient  to  confirm  it.  The 
deed  cannot  be  avoided  except  by  some  solemn  act,  or,  as  some 
assert,  an  act  equally  solemn  with  the  deed  itself ;  but  acts  of 
a  character  which  would  be  insufficient  to  avoid  such  a  deed 
may  amount  to  an  affirmance  of  it.^ 

The  purchaser  of  an  infant's  lands  succeeds  to  all  the  in- 
fants's  rights  in  relation  to  it,  although  those  rights  grow  out 
of  his  infancy.*  And  a  party  in  possession  under  the  infant's 
deed  cannot  be  regarded  as  a  trespasser  before  the  deed  is 
avoided.^ 

§  440.  The  Same  Subject;  Entry,  &c. —  A  conveyance,  in 
due  season  after  majority,  to  a  third  person  has  been  taken  to 
be  sufficient  disaffirmance  of  the  minor's  deed,  especially  when 
coupled  with  express  notice  of  disaffirmance,  and  followed  by 
the  grantee's  entry.® 

1  Hall  V.  Simmons,  2  Rich.  Eq.  120 ;  taking  a  lease  of  part  of  the  premises 
Alswortli  ;;.  Cordtz,  31  Miss.  32;  Belton  from  the  person  to  whom  lie  had  con- 
V.  Briggs,  4  Desaus.  465  ;  Creslnger  v.  A'eyed  when  an  infant  was  lield  proper 
Welch,  1-5  Ohio,  156  ;  Emmons  v.  Miir-  evidence  of  affirmance.  And  see  Phil- 
ray,  16  N.  H.  385.  lips  v.   Green,  5  Monr.  .344  ;  Scott  v. 

2  Blankenship  v.  Stout,  25  111.  132;  Buchanan,  11  Humph.  468;  Allen  v. 
Wright  i;.  Germain,  21  Iowa,  585.  And  Poole,  54  Miss.  323;  Jolinston  y.  Fur- 
see  Ferguson  v.  Bell,  17  Mo.  347  ;  Bost-  nier,  69  Penn.  St.  449  ;  lie  Wood,  71 
wick  V.  Atkins,  3  Comst.  53;  Pursley  Mo.  623;  Houser  v.  Reynolds,  1  Hayw. 
V.  Hays,  17  Iowa,  311 ;  Sheldon  ?'.  New-  148. 

ton,   3  Ohio,   n.   s.  494;    Rainsford  v.  *  Thompson  !'.  Gaillard,  3  Rich.  418. 

Rainsford,  Spears  Cli.  385.     Forgetful-  See  Jackson   v.   Todd,  G  Johns.   257 ; 

ness  of  the  deed  in  infancy  is  no  sufR-  Hall  v.  Jones,  21  Md.  439. 
cient   excuse    for    delay  to   disaffirm.         ^  Wallace  v.  Lewis,  4  Harring.  75. 
Tunison  v.  Chamblin,  88  111.  378.  6  gee  Prout  v.  Wiley,  28  Mich.  164; 

3  Irvine  v.  Irvine,  9  Wall.  617.   Here  Riggs  v.  Fisk,  64  Md.  100. 

40  625 


§  440  THE   DOMESTIC    RELATIONS.  [PART   V. 

Whether  it  is  necessary  that  an  entry  upon  the  land  to 
regain  seisin  be  made  to  perfect  the  title  of  the  person  in- 
tending to  disaffirm  his  conveyance  as  infant,  does  not  clearly 
appear  from  the  authorities.  The  old  rule  was  that  in  order 
to  avoid  a  feoffment  this  was  necessary.  But  conveyance  by 
feoffment  has  been  superseded  by  other  methods  of  trans- 
ferring real  property  in  England,  and  it  is  not  in  use  here. 
In  some  of  the  earlier  New  York  cases,  where  an  infant  had 
sold  wild  lands  to  other  persons,  and  had,  after  coming  of  age, 
conveyed  by  similar  deed  the  same  lands  to  another,  it  was 
held  that  the  first  conveyance  had  been  legally  avoided,  and 
the  last  purchaser  was  entitled  to  the  property.^  A  case  be- 
fore the  Supreme  Court  in  the  United  States  is  supposed  to 
sustain  the  same  view  ;  only  arguendo^  however,  for  in  point 
of  fact  the  person  making  the  second  conveyance  remained 
in  possession  all  the  time  ;  and,  as  the  court  observed,  "could 
not  enter  upon  himself."^  Following  the  indication  of  these 
three  important  cases,  several  of  the  State  courts  have  since 
held  that  a  conveyance  by  an  infant  of  the  same  land  to  an- 
other person,  after  he  comes  of  age,  effectually  avoids  a  deed 
of  bargain  and  sale  made  in  infancy ;  and  this  without  entry 
on  his  part.^  But  the  New  York  courts  have  latterly  been 
disposed  to  retrace  their  steps  ;  reluctance  to  do  injury  to 
others,  doubtless,  contributing  to  increase  the  strictness  of 
requirements  on  the  infant's  part.  Their  present  rule  appears 
to  be  that,  unless  the  lands  were  wholly  vacant,  or  the  infant 
remained  in  possession,  he  must  make  an  entry  or  do  some 
other  act  of  equal  notoriety  before  he  can  pass  title  by  a 
second  conveyance.*  There  is  no  authority  in  the  New  Eng- 
land States  to  oppose  this  later  doctrine  ;  nor  do  we  find  any 
in  the  other  Middle  States.^     But  doubt  is  removed  by  stat- 

^  Jackson   v.   Carpenter,   11  Johns.  Watson,  10  Ohio,  127;  Peterson  y.  Laik, 

539 ;  Jackson  v.  Burchin,  14  Johns.  124.  24  Mo.  541. 

See  Met.  Contr.  44,  45,  where  this  sub-  ^  Dominick  v.  Michael,  4  Sandf.  421 ; 

ject  is  discussed.  Bool  v.  Mix,  17  Wend.  133 ;  Voorliies 

2  Tucker  v.  Moreland,  10  Pet.  58,  v.  Voorhies,  24  Barb.  150. 

per  Story,  J.  6  g^e   Roberts  v.   Wiggin,  1  N.  H. 

3  Hoyle  V.  Stowe,  2  Dev.  &  Bat.  320 ;  75  ;  Worcester  v.  Eaton,  13  Mass.  375. 
Pitcher  v.  Laycock,  7  Ind.  398  ;  McGan  See  also  Harrison  v.  Adcock,  8  Ga.  68  ; 
V.  Marshall,  7  Humph.  121 ;  Huglies  v.  Moore  v.  Abernethy,  7  Blackf.  442. 

626 


CHAP,  v.]       RATIFICATION,  ETC.,  OF   CONTRACTS.  §  441 

utes,  in  Maine,  Massachusetts,  and  some  other  States,  which 
permit  parties  to  recover  land  by  writ  of  entry  without 
making  actual  entr}^  And  it  is  held  in  Maine  that  such  a 
writ  dispenses  with  entry  and  amounts  to  disaffirmance.^ 

To  render  a  subsequent  conveyance  an  act  of  dissent  to  the 
prior  conveyance  of  an  infant,  it  must  be  inconsistent  there- 
with, so  that  the  two  cannot  stand  together.^  And  it  is  held 
that  where  land  was  conveyed  by  a  person  under  age  in 
exchange  for  other  lands,  and  he,  after  coming  of  age,  sells 
and  conveys  the  lands  so  received,  the  last  deed  amounts  to  a 
confirmation  of  the  first.^ 

§441.  Ratification,  &c.,  as  to  an  Infant's  Purchase.  —  The 
same  reasoning  which  applies  to  property  transferred  by  the 
infant  applies  to  his  purchases.  If  an  infant,  for  instance, 
takes  a  conveyance  of  land  during  minority  and  retains 
possession  after  coming  to  majority,  circumstances  may  make 
that  a  binding  transaction.  So  if  an  infant  lessee  remains  in 
possession  of  the  house  or  land  demised,  and  pays  rent  after 
majority,  he  cannot  repudiate  the  lease  afterwards.* 

When  an  infant  purchases  property,  and  continues  to  enjoy 
the  use  of  the  same,  and  then  sells  it  or  any  part  of  it,  and 
receives  the  money  for  it,  he  must  be  considered  as  having 
elected  to  affirm  the  contract,  and  he  cannot  afterwards  avoid 
payment  of  the  consideration.^     Some  authorities  would  con- 


1  Cliadbonrne   v.  Rackliff,    30   Me.  •  infancy,  see  McCarty  v.  Carter,  49  111. 

354.     And  see  Cole  v.  Pennoyer,  14  111.  53.     But  acquiescing  in  the  settlement 

158.     Judge  Metcalf  appears  to  doubt  of   boundaries    after    coming    of   age 

the  correctness  of  the  rule  in  Jackson  binds  the  infant.     George  v.  Thomas, 

V.  Carpenter,  even  as  to  cases  of  wild  16  Tex.  74. 

lands.      See   Met.  Contr.   45,   46,   and  -  Leitensdorfer    v.    Hempstead,    18 

cases  cited.     A  bill  to  enforce  specific  Mo.  269  •  McGan  y.  Marshall,  7  Humph, 

performance  of  an  infant's  contract  to  121. 

sell  real  estate  should  not  be  brouglit  3  -Williams  v.  Mabee,  3  Halst.  Ch. 

before  a  reasonable  time  has  elapsed,  500. 

after   the   infant   attains  majority,  for  *  Holmes   v.   Blogg,  8   Taunt.   35; 

him  to  aflBrm  or  disaffirm.     Walker  v.  Smith    Contr.     284 ;     Bac.    Abr.    tit. 

Ellis,  12  111.  470;  Petty  v.   Roberts,  7  Infant,  K.  612;  Baxter  v.  Bush,  29  Vt. 

Bush,  410;  Griffis  v.  Younger,  0  Ired.  465;  Armfield  v.  Tate,  7  Ired.  258. 

Eq.  520  ;  Carrel  y.  Potter,  23  Mich.  877.  5  Boody    v.   McKcnney,    10    Shep. 

As  to  tlie  ratification  necessary  to  allow  517  ;  Hubbard  v.  Cummings,  1  Me.  11  ; 

of  enforcing  a  lien  on  real  estate  for  Boyden  v.  Boyden,  9  Met.   519;    Rob- 

work  and  materials  furnished   during  bins  v.  Eaton,  10  N.  H.  5G1. 

627 


§  442  THE   DOMESTIC   RELATIONS.  [PAET   V. 

fine  the  affirmation  of  a  purchase  of  land  to  an  actual  subse- 
quent sale,  but  this  is  quite  unreasonable,  and  contrary  to 
the  general  doctrine  ;  for  there  may  be  many  other  acts 
Avhicli  constitute  just  as  full  and  undoubted  evidence  of  a 
design  on  the  infant's  part  to  affirm  such  contract  as  an 
actual  sale  of  the  land.  Tlius  continuous  occupation  of 
premises,  improvements,  and  offers  to  sell,  have  some- 
times been  deemed  sufficient.^  And  Chief  Justice  Shaw 
observes  that  if  an  infant,  after  coming  of  age,  retains 
landed  property  purchased  by  hira  during  minority  for  his 
own  use,  or  sells  or  otherwise  disposes  of  it,  such  acts  being 
only  conscientiously  done  with  intent  to  ratify  or  affirm, 
affirmation  or  ratification  may  be  inferred.^  Tlie  same  prin- 
ciple has  been  declared  in  other  cases,  even  to  the  extent  of 
holding  that  mere  continuance  in  possession  is  an  affirmance  ; 
the  more  so,  if  the  late  infant  has  put  it  out  of  his  power  to 
restore  the  title.^  It  will  be  observed  that  such  latter  con- 
duct involves  two  elements :  lapse  of  time  and  the  exercise 
of  acts  of  ownership.^ 

§  442.  Executory  Contracts,  &c.,  Voidable  during  Infancy ; 
how  Affirmed  or  Disaffirmed.  —  As  to  deeds  passing  a  voidable 
title  to  land  out  of  the  infant  we  have  seen  that  he  cannot 
elect  to  disaffirm  or  ratify  until  he  attains  majority.  But 
with  regard  to  an  infant's  executory  contracts,  or  transactions 
importing  on  his  part  the  fultihnent  of  duties,  during  the 
period  of  infancy,  which  might  be  prejudicial  or  irksome,  he  is 
allowed  to  disaffirm  and  avoid  during  infancy,  wherever  the  ' 
contract  was  not  of  that  beneficial  or  positive  kind  which  the 
law  pronounces  binding.  This  is  strictly  in  accordance  with 
the  general  doctrine  that  one  shall  not  be  prejudiced  by  his 
own  acts    committed  while  an  infant.     Thus,  if   the  infant 

1  See  Eobbins  v.  Eaton,  10  N.  H.  a  full  examination  of  the  anthorities 
5G1.  An  infant  liad  given  his  note  for  cer- 

2  See  Boyden  v.  Boyden,  9  Met.  519.  tain  real  estate  ;  and,  very  foolishly,  or 

3  Dana  v.  Coombs,  6  Greenl.  89;  very  dishonorably,  endeavored  to  avoid 
Cheshire  v.  Barrett,  4  M'Cord,  241 ;  payment  upon  majority,  while  holding 
Lynde  V.  Budd,  2  Paige,  191 ;  Middle-  to  the  benefits  of  his  purchase.  It  was 
ton  V.  Hoge,  5  Bush,  478.  held  that  by   his  acts  he  had  ratified 

*  This  rule  was  applied  in  a  recent  the  contract  of  purchase.  Henry  j;. 
well-considered  Kew  York  case,  upon    Root,  33  N.  Y.  526. 

628 


CHAP,  v.]       RATIFICATION,  ETC.,  OF   CONTRACTS.  §  443 

promises  daring  infancy  to  many,  he  need  not  fidfil  that 
promise  ;  if  he  make  a  stock  contract  he  can  repudiate  it  at 
any  time  and  thereby  avoid  the  onerous  responsibihty  of 
continuing  to  pay  assessments ;  ^  if  he  has  become  a  partner 
he  may  rid  himself,  before  majorit}^,  of  the  injudicious  com- 
pact.2  A  disaffirmance  during  infancy,  wliere  thus  permitted, 
may  require  something  different  from  disaffirmance  at  major- 
ity, sometliing  more  explicit  perhaps,  and  nearer  to  an  express 
repudiation  ;  though  each  case,  as  in  the  case  of  election  at 
majority,  should  be  governed  by  its  own  circumstances.  The 
executory  contract  of  an  infant  to  convey  or  transfer  his  real 
or  personal  property  cannot  be  specificallj'  enforced  against 
him,  nor  made  the  basis  of  an  action  of  damages  ; "  nor,  on 
the  other  hand,  can  his  executory  contract  to  buy  real  or 
personal  property,  or  to  mortgage  or  give  security,  be  com- 
pelled ;  but  in  either  case  the  right  of  affirmance  or  disaffirm- 
ance is  left  open  to  him."^ 

§  443.  Rule  applied  to  Infant's  Contract  of  Service.  —  Thus, 
too,  although  it  may  be  said  that  one's  fully  executed  con- 
tract for  service  cannot  be  re-opened,  if  beneficial  to  him,  to 
the  adult  party's  detriment,  the  general  rule,  independently 
of  the  apprentice  acts,  is  that  an  infant  who  contracts  to  per- 
form labor  for  a  fixed  time  at  a  definite  rate  ma}^  put  an  end 
to  it  whenever  he  chooses  during  minority,  and  claim  compen- 
sation pro  rata  for  his  services."     Infants,  acting  upon  bad 

1  Dublin  &  Wicklow  R.  v.  Black,  Haines,  52  El.  485 ;  Davies  v.  Turton, 

8  Ex.   181  ;   Indianapolis  Chair  Co.  v.  13  Wis.  185;  Moses  v.  Stevens,  2  Pick. 

Wilcox,    59    Ind.    429 ;    Robinson    v.  332 ;    Mason   v.  Wright,   13  Met.  306 ; 

Weeks,  56  Me.  102.  Gaffney  i\   Hayden,    110    Mass.    137; 

^  Goode  V.  Harrison,  5  B.    &  Aid.  Spicer  v.  Earl,  41  Mich.  191 ;    Lufkin 

147  ;  Dunton  v.  Brown,  31  Mich.  82.  v.  Mayall,  5  Fost.  82;  Francis  v.  Felmet, 

3  Walker  v.  Ellis,  12  111.  470  ;  Petty  4  Dev.  &  Bat.  498  ;  Judkins  v.  Walker, 

V.   Roberts,    7   Bush,    410;    Griffis    v.  17   Me.  38;    Nashville,  &c.   R.   Co.  v. 

Younger,   6  Ired.  Eq.  520.     And   see  Elliott,  1  Cold.  611.     But  see  Weeks 

Mustard  v.  Wohlford,  15  Gratt.  329.  v.   Leighton,  5  N.  H.  .343 ;  Harney   v. 

1  See   Riley   v.  Mallory,   33   Conn.  Owen,  4  Blackf .  336  ;  Wilhelni  v.  Hard- 

201.     An  infant  who  bids  for  property  man,  13  Md.  140  ;  M'Coy  i".  Huffman, 

at  an  auction  is  not  obliged  to  execute  8  Cow.    84  ;    Medbury   v.   Watrous,   7 

the  purchase.     Shurtleffy.  Millard,  12  Hill,    110.      As    to    the    more    general 

R.  I.  272.  effect  of  emancipation,  see  supra,  Part 

6  Person  v.  Chase,  37  Vt.  647  ;  Van  III.  c.  5. 
Pelt  V.  Corwine,  6  Ind.  363 ;   Ray  v, 

629 


§  443  THE   DOMESTIC   RELATIONS.  [PART   V. 

advice,  however,  have  sometimes  the  effrontery,  after  rescind- 
ing a  contract  of  service  beneficial  to  themselves,  to  demand 
wages  from  their  emploj-ers,  without  the  allowance  of  reason- 
able offsets  ;  but  the  courts  are  not  so  foolish  as  to  indulge 
them  often  in  tliis  respect ;  hence,  in  numerous  instances, 
it  is  decided  that  where  an  infant  puts  an  end  to  his  contract 
of  service,  his  demand  for  proportional  wages  is  subject  to 
the  reasonable  deduction  of  his  employer  for  part-payments, 
board,  and  necessaries  furnished  him  during  the  same  period, 
even  to  the  entire  extinction  of  his  own  claim. ^  And  the 
injury  sustained  by  his  employer  will  be  not  unfrcquently 
taken  into  account.^  But  the  infant  cannot  be  sued  for 
breach  of  his  agreement  of  service.^  Of  course  he  may 
set  off  his  own  labor  against  the  employer's  demand  for 
necessaries.*  The  mutual  understanding  of  the  parties  as  to 
whether  the  infant's  services  should  be  paid  for,  or  counter- 
balanced completely  by  his  board  and  education,  should  be 
regarded  in  every  case,  upon  examination  of  the  circum- 
stances.^ And  if  the  infant  continues  in  service  after  he 
becomes  of  age,  without  demanding  increase  of  wages  or 
other  modification  of  the  contract,  this  is  good  evidence  of 
his  affirmance  of  the  contract.^ 

1  Tliomasf.  Dike,  11  Vt.  273;  Hoxie  the  outfit  one  third   of  all  the  avail3 

V.  Lincoln,  25  Vt.  206;    Lowe  v.  Sin-  of  his  labor  during  his  absence,  which 

klear,  27  Mo.  308 ;    Stone  r.  Dennison,  lie  afterwards  sent  accordingly.     The 

13  Pick.  1 ;    Squier  v.  Hydliff,  9  Mich,  jury  having  found  that  the  agreement 

274  ;  Wiliielni  o.  Ilardman,  13  Md.  140;  was  fairly  made,  and  for  a  reasonable 

Roundy  v.  Thatclier,  49  N.  H.  526.  consideration,  and  beneficial  to  the  in- 

^  Thomas  I'.  Dike,  11  Vt.  273;  Hoxie  fant,  it  was    held   that   he  could   not 

V.  Lincoln,  25  Vt.  206 ;    Lowe  i*.  Sin-  rescind    the    agreement    and    recover 

klear,  27  Mo.  308  ;  Moses  i-.  Stevens,  2  the  amount   sent,   deducting   the  cost 

Pick.  336.    Contra,  Meeker  v.  Hurd,  31  of  the  outfit  and  any  other  money  ex- 

31  Vt.  6.39;    Derocher   v.  Continental  pended  for  him  under  tlie  agreement. 

Mills,  58  Me.  217.  Breed  v.  Judd,  1  Gray,  455.  This  offer, 

3  Frazier  v.  Rowan,  2  Brev.  47.  the  court   observed,  would   not   place 

■*  Francis  v.  Felmet,  4  Dev.  &  Bat.  the  parties  in  stnhi  quo,  for  the  defend- 

498.  ants  took  the   risk  of  the  life,  liealtli, 

5  Mountain   v.  Fisher,  22  Wis.  93;  and     good    fortune    of    the    i)laintiff. 

Garnei  v.  Board,  27  Ind.  323.     A  case  Under  all  tlie  circumstances  of  the  case, 

occurred  in  Massachusetts  a  few  years  the  sum  advanced  was  held  to  be  a  rea- 

ago,  where  an  infant,  in  consideration  sonable  consideration  for  a  tliird  part  of 

of  an  outfit   to   enable   him    to  go  to  the  proceeds  of  tlie  [)laintiff's  labor. 
California,   agreed,  with    his    fatlier's  "  Spicer  v.  Earl,  41  Mich.  191.   Says 

assent,  to   give   tlie    party  furnishing  Cooley,   J.,    of   repudiation    in     such 

680 


CHAP,  v.]      RATIFICATION,  ETC.,  OF   CONTRACTS.  §  444 

It  is  a  well-known  principle  that  when  a  contract  is  dis- 
solved bj  mutual  consent,  'pro  rata  wages  may  be  recovered 
witliout  express  agreement.  This  applies  to  infants  as  well 
as  adults.  But  a  father  is  so  far  bound  by  his  son's  contract 
that  his  own  claim  f(?r  com23ensation  depends  upon  his  son's 
proper  performance.^  The  employer,  on  the  other  hand, 
cannot  make  a  new  contract  with  the  minor,  so  as  to  super- 
sede the  first  one,  without  the  assent  of  the  father,  or  other 
person  with  whom  the  original  contract  was  made."^  But  it 
is  held  that  a  contract  of  hiring  between  an  infant  and  a 
third  person  is  not  rendered  inoperative  on  the  infant's  part 
merely  for  want  of  the  parent's  previous  consent ;  the  infant 
not  having  avoided  the  contract,  and  the  parent  making  no 
effort  to  assert  his  paramount  rights.^ 

§  444.  Parents,  Guardians,  &c.,  cannot  render  Contract  Obli- 
gatory upon  the  Infant,  8lc.  —  A  contract  made  by  a  parent,  or 
guardian,  or  a  stranger,  in  an  infant's  name,  acquires  no  obli- 
gator}' force  against  the  infant  himself,  apart  from  the  latter's 
knowledge  or  consent ;  and  if  it  be  the  infant's  own  con- 
tract, then  the  usual  right  of  ratification  or  avoidance  re- 
mains open  to  him.*  One  who  assumes  for  an  infant  a  mort- 
gage debt,  or  a  deficiency  upon  foreclosure  of  the  infant's 
land,  or  makes  any  undertaking  for  the  infant  upon  a  void- 
able obligation,  cainiot  render  the  infant  personally  liable.^ 
Nor  can  a  father  sue  on  his  child's  voidable  contract  as  the 
child's  substitute.^ 

On  the  other  hand  a  third  person  not  in  privity  with  the 
infant,  has  no  right  to  say  that  the  infant  shall  not  on  ma- 
jority make  or  assume  any  contract  he  pleases.'^ 

cases  :  "  Where  only  the  infant's  ser-  Barb.  160.     See  also  Parent  and  Child, 

vices  are  in  question,  the  rule  should  supra. 

not  be  extended  beyond  what  is  abso-  ^  Nashville,  &c.  R.  R.  Co.  v.  Elliott, 

lately  necessary  to  proper  protection  ;  1  Cold.  64. 

it  sliouhl  not  be  allowed  to  become  a  ^  Armitage     v.    Widoe,    36     Mich. 

trap  for  others,  by  means  of  which  the  124. 

infant  may  perpetrate  frauds."  ^  Bicknell  v.    Bicknell,    111    Mass. 

1  Rogers  v.  Steele,  24  Vt.  513.     See  265;  Wood  v.  Truax,  39  Midi.  628. 
Thomas  r.  Williams,  1  Ad.  &  E.  685;  ^  Qsburn  v.  Farr,  42  Midi.  134. 

Roundy  v.  Thatcher,  49  N.  II.  526.  ^  Douglas    v.  Watson,  34   E.  L.  & 

'^  McDonald    v.    Montague,   30  Vt.  Eq.  447. 
S57.    And  see  Gates  v.  Davenport,  29 

631 


§  446  THE   DOMESTIC   EELATIONS.  [PART  V. 

§  445.  Miscellaneous  Points ;  As  to  New  Promise  ;  "Whether 
Infant  aflBrming  must  know  his  Legal  Rights.  —  Where  a  new 
promise  is  requisite  on  reacliing  majority,  it  must  be  made  to 
the  party  with  whom  the  infant  contracted,  or  to  his  agent  or 
attorney  ;  not  to  a  stranger.^  But  a  promise  to  an  agent 
authorized  to  present  the  claim  and  receive  payment  and 
give  discharge  binds  him  lately  an  infant.^  And  where  a 
writing  addressed  to  another  than  the  plaintiff  is  relied  on, 
not  as  constituting  a  ratification  or  containing  a  promise,  but 
as  evidence  of  a  ratification  previously  made  by  the  defendant, 
it  is  held  admissible  in  the  plaintiff's  favor.*^  Nor  is  it  neces- 
sary that  the  agent  should  have  disclosed  his  authority  before 
the  defendant  made  his  admission.^ 

It  is  not  essential  to  a  valid  ratification  that  the  person 
lately  an  infant  should  know  that  he  was  not  legally  liable 
on  his  contract  made  during  infancy.^  Ignorance  of  the  law 
excuses  no  one.  But  there  is  a  dictum  of  Lord  Alvanley  to 
the  contrary,  which  has  been  frequently  repeated  in  Ameri- 
can courts,  and  once  constituted  the  basis  of  a  decision  in 
Pennsylvania.^ 

§  446.  Whether  Infant  who  disaffirms  must  restore  Considera- 
tion. —  It  is  a  rule  that  money  voluntaril}^  paid  by  a  minor 
under  a  contract  from  which  he  has  derived  no  benefit  may 
be  recovered  back  upon  his  disaffirmance  of  the  contract.'^ 
An  infant,  upon  reaching  majority,  who  chooses  to  disaffirm  a 
sale  of  his  real  estate  not  made  in  accordance  with  law,  may 
do  so  without  first  refunding,  or  offering  to  refund,  the  pur- 
chase-money.^    But  the  principle  is  firmly  established  by  the 

1  Bigelow  V.  Grannis,  2  Hill,  120;  v.  Boshears,  4  Sneed,  118;  Norris  v. 
Goodscll  V.  Myers,  3  Wend.  479.  Vance,  3  Rich.  164. 

2  Mayer  v.  McLnre,  36  Mi,«s.  389.  ■?  Shurtleff  v.  Millard,  12  R.  I.  272, 

3  Stern  v.  Freeman,  4  Met.  (Ky).  applies  this  doctrine  (and  without  re- 
309.  striction  as  to  auctioneer's  loss)  to  the 

*  Hoit  V.  Underhill,   10  N.  H.  220.  deposit  money,  paid  by  an  infant  at  an 

And  see  Tate  v.  Tate,  1  Dev.  &  Bat.  auction  purchase,  where  he  repudiated 

22.  before  completing  the  purchase. 

5  Morse  v.  Wheeler,  4  Allen,  570;  8  Pitcher  v.  Laycock,  7  Ind.  398; 
Met.  Contr.  59;  Ring  v.  Jamison,  66  Cresinger  v.  Welch,  15  Ohio,  156; 
Mo.  124.  Miles  v.  Lingerman,  24  Ind.  385 ;  Bed- 

6  Harmer  v.  Killing,  5  Esp.  10.3  ;  inger  v.  Wharton,  27  Gratt.  857  ;  Green 
Hinoly  v.  Margaritz,  3  Barr,  428.  See  v.  Green,  60  N.  Y.  553.  But  see  Stuart 
Curtin  v.  Patten,  11  S.  &  R.  305 ;  Reed  v.  Baker,  17  Tex.  417. 

632 


CHAP,  v.]       KATIFICATION,  ETC.,  OF   CONTRACTS.  §  446 

courts  that  he  cannot  on  attaining  full  age  hold  to  an  ex- 
chano-e  or  purchase,  made  by  him  in  infancy,  and  its  advan- 
tages, and  thus  affirm  that,  while  pleading  his  infancy  to  avoid 
the  payment  of  the  purchase-money.^  There  is  some  conflict 
in  this  class  of  cases,  however,  at  the  present  day  ;  the  effort 
being  on  the  one  hand  to  hold  the  infant  to  common  honesty, 
and  on  the  other,  not  to  deprive  him  of  the  legal  right  of 
election  which  the  policy  of  the  law  accords  to  all  who  have 
been  under  a  legal  disability,  because  of  possible  improvi- 
dence on  his  part  while  irresponsible.  According  to  the 
better  opinion  now  current,  it  is  only  when  an  infant  on  dis- 
affirming his  contract  at  majority  still  has  the  consideration, 
that  he  can  be  compelled  to  return  it  as  the  condition  of 
disaffirmance  ;  restitution  in  full  not  being  a  prerequisite,  but 
restitution  of  the  advantages  as  they  still  remain  to  him 
and  capable  of  being  restored.^  Where  an  infant  has  the 
privilege  of  repudiating  during  infancy,  a  similar  rule  applies 
as  to  restoring  consideration.^ 

Hence  an  infant  cannot  damage  property  he  has  received, 
and  then  demand  the  full  price  on  offering  to  restore  it.*  Nor 
recover   partnership  property  after  rescinding  the  partner- 

1  Kline  v.  Beall,  6  Conn.  494 ;  Bailey  giving  a  purchase-money  mortgage  for 
w.  Bamberger,  11  B.  Monr.  113;  Strain  the  price  cannot  disaffirm  the  mort- 
V.  Wright,  7  Ga.  568;  Hillyer  v.  Ben-  gage  and  at  the  same  time  keep  the 
nett,  3  Edw.  Oil.  222;  Lowry  w.  Drake,  chattels  as  if  by  clear  title.  Ciirtiss  v. 
1  Dana,  46;  Kitciien  u.  Lee,  11  Paige,  McDougal,  26  Ohio  St.  66;  Knaggs 
107;  Tipton  v.  Tipton,  3  Jones,  552;  ?;.  Green,  48  Wis.  601 ;  Carpenter  i-.Car- 
Womack  v.  Womack,  8  Tex.  397  ;  penter,  45  Ind.  142  ;  White  v.  Branch, 
Smith  V.  Evans,  5  Humph.  70;  Man-  51  Ind.  210, —  seem  to  absolve  the  in- 
ning V.  Johnson,  26  Ala.  446 ;  Wilie  v.  fant  from  restoring  property  received 
Brooks,  45  Miss.  542;  Kerr  r.  Bell,  44  in  exchange.  But,  scinhlp,  if  he  still 
Mo.  120.  holds  the  exchanged  property  he  ought, 

2  Chandler  v.  Simmons,  97  Mass.  on  correct  principle,  to  restore  or  offer 
508 ;  Green  v.  Green,  09  N.  Y.  558,  to  restore  it,  when  disaffirming  the 
and  cases  cited;  Dill  v.  Bowcn,  54  transaction.  In  ms\ny  cases,  to  main- 
Ind.  204 ;  Shurtleff  v.  Millard,  12  R.  tain  an  action  based  upon  iiis  avoidance 
1.272.  Cf.  Badger  V.  Phinney,  15  Mass.  of  his  contract,  an  infant  should  first 
359;  Bartholemew  v.  Finneniore,  17  give  notice  of  his  election  to  avoid  or 
Barb.  428.  make  a  demand.      Betts  v.  Carroll,  6 

3  Corey  v.  Burton,  32  Mich.  30,  the  App.    518.     See   Stout   v.    Merrill,    35 
case  of  a  chattel  mortgage  ;  where  the  Iowa,  47  ;  Henry  r.  Root,  33  N.  Y.  526. 
infant  was  allowed  to  replevy  the  chat-  ^  Carr  v.  Clough,  6  Fost.  280  ;  Bar- 
tels  without  restoring  tlie  consideration,  tholemew  v.  Finnemore,  17  Barb.  428. 
But  an  infant  purchasing  chattels  and 

633 


§  447  THE   DOMESTIC   RELATIONS.  [PART   V. 

ship  agreement,  so  as  to  prejudice  liabilities  of  the  firm  which 
are  outstanding;^  nor  rescind  tlie  partnership  agreement  and 
then  demand  benefits  inconsistent  with  it.^  If  the  former 
vendee  be  sued  for  use  and  occupation  of  land,  it  is  held  ihat 
lie  ma}^  recoup  for  valuable  improvements  ;  and  equity  favors 
a  fair  adjustment  of  rents,  damages,  and  improvements,^ 
The  plea  of  false  warranty  may  sometimes  be  set  up  against 
the  infant's  attempt  by  affirmance  to  enforce  a  hard  bargain.^ 
To  multiply  these  illustrations  is  unnecessary ;  the  cardinal 
principle  wiiich  runs  through  them  all  is  that,  with  due  reser- 
vation of  the  infant's  privilege,  substantial  justice  should  be 
done,  if  possible,  between  the  two  parties  to  a  contract,  and 
things  placed  in  statu  quo  when  the  contract  is  rescinded  ; 
for  courts  are  very  reluctant  to  allow  the  infant  to  use  his 
privilege  as  a  means  of  defrauding  others. 

§  447.  Ratification,  &c.,  as  to  Infant  Married  Woman.  —  Since 
a  married  woman  conveys  her  lands  by  force  of  statute  pro- 
visions, perplexing  questions  ma}'  arise  as  to  the  effect  of  a 
conveyance  executed  in  conformity  with  late  acts,  yet  inef- 
fectual because  of  her  infancy.^  It  would  appear  from  some 
late  American  cases,  that  the  wife  still  continuing  covert  after 
becoming  of  age,  acts  which  might  constitute  ratification  in 
ordinary  cases  may  not  always  be  set  up  against  her.^  But  a 
married  woman  is  sometimes  estopped  by  her  own  acts ;  as  in 
a  case  where  her  equitable  interest  in  land  was  sold  while 

^  Furlong  v.  Bartlctt,  21  Pick.  401;  °  Matherson  v.  Davis,  2  Cold.  443; 

Sadler  v.  Robinson,  2  Stew.  520  ;  Kin-  Miles  v.  Lingerman,  24  Iiid.  885.     The 

nen  v.  Maxwell,  6G  N.  C.  45.  equity  doctrine,  to  argue  from  the  case 

2  Page    V.    Morse,    128    Mass.    99;  of  marriage  settlements,  appears  to  be 

Dunton  v.  Brown,  31  Mich.  82.      So,  that  the  wife  may  by  acts  give  validity 

too,  as  to  his  contract  to  perform  ser-  to  such  deeds,  after  attaining  full  age 

vice,  supra,  §  443.  and    notwithstanding    her    coverture. 

2  Weaver  v.   Jones,  24   Ala.    420 ;  See  snpm,  §  399.     Disaffirmance  soon 

Petty  V.  Roberts,  7  Bush,  410.     If  one  after  attaining  majority  was  permitted 

receives  rents  when  an  infant,  he  can-  in  Scranton  v.   Stewart,  52  Ind.  09,  92. 

not  demand   tliem   over   again   on  at-  But  a  reasonable  time  after  discover- 

taining  majority.      Parker  v.  Elder,  11  ture  is  allowed  an  infant  wife,  as  cases 

Humph.  546.  now  decide  the   point,   though  length 

*  Morrill  v.  Aden,  19  Vt.  505.     And  of   time    may  have    intervened.      See 

see  Heath  i>.  West,  8  Post.  101;    Ship-  Schoul.  Hus.  &  Wife,  §  178;    Sims  v. 

man  v.  Horton,  17  Conn.  481;  Edgar-  Everhardt,  102  U.  S.  Supr.  300;  supra, 

ton  V.  Wolf,  6  Gray,  458.  Part  II.  c.  6.    Infant  husband's  convey- 

^  Harbman  v.  Kendall,  4  Ind.  403.  ance  voidable.   4  Heisk.  268, 

634 


CHAP,  v.]       RATIFICATION,  ETC.,  OF   CONTRACTS.  §  448 

she  was  a  minor,  together  with  the  interests  of  adult  parties, 
and  she  received  lier  share  of  the  proceeds  some  years  after 
attaining  majorit3^^ 

§  448.  Rules ;  How  far  Chancery  may  elect  for  the  Infant.  — 
By  a  well-known  rule  of  equity,  the  proceeds  of  lands  sold 
during  minority  retain  the  character  of  real  estate,  and  where 
the  personal  estate  becomes  land  its  original  character  is  like- 
wise retained.  And  such  property  remains  real  or  personal 
still,  even  after  the  infant  attains  majority,  so  long  as  there 
is  no  act  or  intent  on  his  part  to  change  its  character ;  ^  but 
the  character  ceases  when  he  attains  majority,  and  obtains 
possession  of  the  proceeds.^ 

A  court  of  chancery,  however,  as  the  protector  of  the 
young,  has  an  extensive  jurisdiction  of  matters  affecting  an 
infant's  property  rights,  and  may,  upon  a  full  hearing,  the 
infant  himself  being  duly  summoned  and  his  rights  duly 
represented,  enter  a  decree,  which,  if  procured  without  fraud 
or  undue  injury,  will  be  binding.  Of  this  jurisdiction  we  have 
already  treated,^  as  also  of  statutes  authorizing  sales  of  an  in- 
fant's real  estate.^  Infants  must  be  parties  to  bills  in  equity,  as, 
for  instance,  in  affecting  their  title  to  real  estate  ;  and  making 
their  guardians  parties  is  not  sufficient,  as  it  is  generally  ruled, 
without  service  of  process  upon  the  infant  himself  or  the  usual 
publication  of  notice.^ 

But  the  practical  result  must  be,  wherever  chancery  juris- 
diction is  broadly  upheld,  that  the  court  in  many  instances, 
the  infant  being  duly  a  party  to  the  proceedings,  elects  for 

1  Anderson  v.  Mather,  44  N.  Y.  249.  taken  away  because  tlie  infant  is  in- 
And  see  Sehmitheimer  y.  Eiseman,  7  sane. /?2  re  Edwards,  L.U.  10  Cli.  D.  605. 
Bush,  298.  s  /5.  .  Cliappell  v.  Doe,  49  Ala.  153. 

2  Foreman  v.  Foreman,  7  Barb.  215.  ^  Tucker  v.  Bean,  05  Me.  -352  ;  Row- 

3  Forman  v.  Marsh,  1  Kern.  544.  land  v.  Jones,  62  Ala.  o22 ;  Cook  v. 
Upon  tliedeatli  of  the  infant  after  such  Rogers,  64  Ala.  406;  Bonnell  v.  Holt, 
conversion  the  inheritance  or  distribu-  89  111,  71;  (^arver  v.  Carver,  64  Ind. 
tion  is  according  to  the  original  char-  195.  But  see  Burrus  ?'.  Burrus,  56  Miss, 
acter  of  the  property.  See  Paul  v.  92 ;  Scott  r.  Porter,  2  Lea,  224.  And 
York,  1  Tenn.  Ch.  547.  as  to  cancelling  a  purely  personal  eon- 

*  Bart  IV.  cs.  6,  7.      But  as  to  "al-  tract  this  rule  is  all  the  more  imper- 

lowing  the  infant  his  day"  on  reaching  ative.     Insurance  Co.  ?;.  Bangs,  108  U. 

majority,  see  next  c.     Jurisdiction  of  S.  Supr.  435.  As  to  joining  a  guardian, 

the  court  over  an   infant  ward  is  not  see  next  c. 

635 


§  449  THE  DOMESTIC   RELATIONS.  [PART   V. 

bim.^  The  infant's  own  affirmance  of  the  decree  in  chancery 
or  under  statute,  as  by  accepting  and  retaining  the  benefits, 
dehiying  procedure  to  reopen  the  matter  for  alleged  fraud  or 
other  iufirmity,  is  of  course  a  double  confirmation.^ 


CHAPTER  VI. 

ACTIONS   BY   AND    AGAINST   INFANTS. 

§  449.  Actions  at  Law  by  Infants ;  Suit  or  Defence  by  Next 
Friend  or  Guardian.  —  It  is  a  fundamental  principle  that  the 
rights  of  property  shall  vest  in  infants,  notwithstanding  their 
tender  years ;  and  incidentally  thereto  they  have  the  right  of 
action.  Yet,  it  is  clear  that  if  the  infant  be  unfit  to  make  a 
contract  he  is  unfit  to  sue  on  his  own  behalf.  Hence  is  the 
rule  that  while  process  is  sued  out  in  the  infant's  own  name, 
it  is  in  his  name  by  another;  that  is  to  say,  some  person  of 
full  age  must  conduct  the  suit  for  him.  The  same  principle 
applies  to  all  civil  actions,  whether  founded  on  a  contract  or 
not. 

At  common  law,  infants  could  neither  sue  nor  defend, 
except  b}'  guardian.  They  were  authorized,  by  Stat.  Westm. 
1,  to  sue  by  2yfochein  ami  (or  next  friend)  against  the  guar- 
dian in  chivalry  who  had  aliened  any  portion  of  the  infant's 
inheritance.^     Stat.  Westm.  2,  c.  15,  extended  this  privilege 

1  Chancery  may  authorize  leases  for  16  Ch.  D.  41.  Or  exercise  discretion  as 

the  enhancement  of  the  real  estate  of  to  selling  either  realty  or  personalty,  or 

infants  if  manifestly  for  their  interests,  both.     Jones  v.    Sharp,  9  Heisk.   GGO. 

Talbot  V.  Provine,  7  Baxt.  502.     As  to  And  see   Knotts  v.   Stearns,  91    U.  S. 

partition  sale  held  binding,  see  Cocks  Supr.  638.     Decree  sustained,  notwith- 

V.   Simmons,  57    Miss.    183 ;    Scott   v.  standing   the   birth   of    a  posthumous 

Porter,  2  Lea,  224.      As  to  decree  en-  child  not  considered  when  the  sale  wag 

forcing  a   vendor's   lien,  see  Cocks  v.  ordered.     Ih.     See    also    Goodman   v. 

Simmons,  57  Miss.  183.     As  to  sale  for  Winter,  64  Ala.  410. 
maintenance  or  better  investment,  see  ^  Walker  y.  Mulvean,  76111. 18  ;  Cor- 

Siiarp  V.   Findley,  59  Ga.    722  ;  supra,  win  v.  Shoup,  76  111.  246.    See  further, 

Part  IV.  cs.  6,  7.     Chancery  may  com-  as  to  the  binding  effect  of  decrees  and 

promise  a  claim  in   which  infants  are  judgments,  next  c. 
interested,   even    against    next   friend  3  Macphers.  Inf  13,  352. 

or  guardian  ad  litem.     In  re  Birchall, 

636 


CHAP.  TI.]     ACTIONS    BY    AND   AGAINST   INFANTS.  §  449 

to  all  other  cases  where  they  could  not  sue  formally.  Lord 
Coke  lays  down  that,  since  these  statutes,  the  infant  shall  sue 
by  prochein  ami  and  defend  by  guardian.^  And  Fitzhevbert 
is  to  the  same  effect.^  But  Mr.  Hargrave  thinks  it  probable 
that  Fitzherbert  and  Lord  Coke  did  not  mean  to  exclude  the 
election  of  suing  either  by  prochein  ami  or  by  guardian.^ 
And  whether  the}'  did  or  not,  guardianship  at  the  present 
day,  so  unlike  guardianship  as  they  understood  it,  justifies 
the  modern  practice  ;  which  is  to  appoint  a  special  person  as 
jyrochein  ami  only  in  case  of  necessity,  where  an  infant  is  to 
sue  his  guardian,  or  the  guardian  will  not  sue  for  him,  or  it  is 
improper  that  the  guardian  should  be  the  prochein  ami.  In 
other  cases,  the  rule  is  to  sue  by  guardian  or  prochein  amiA 
But  an  infant  may  sue  b}'  his  next  friend  though  he  have  a 
guardian,  if  the  guardian  does  not  dissent.^  And  in  some 
States  the  choice  allowed  the  infant  is  still  more  liberal.^  Not 
unfrequently,  too,  the  next  friend  who  brought  the  suit  is 
removed  and  another  appointed,  on  the  ground  that  it  is  for 
the  infant's  benefit.'^ 

An  infant  cannot  prosecute  an  action  either  in  person  or 
by  attorney.  This  is  well  settled.^  But  advantage  must  be 
taken  by  plea  in  abatement  of  the  infant's  suing  by  attorney, 
or  by  application  to  a  judge,  or  the  court,  for  it  is  not  error 
after  judgment  either  on  verdict  or  by  default.^  The  same 
rules  are  frequently  applied  to  a  parent  who  sues  on  behalf  of 
minor  children,  but  not  as  guardian  or  next  friend.     Where 

1  2  Inst.  261,390;  Co.  Litt.  135  6;  y.  Humes,  22  Md.  310.  As  where  the 
3  Robinson's  Pract.  229.  next  friend  refuses  to  appeal.     Dupuy 

2  F.  N.  B.  [1^7]  11.  V.  Welsford,  28  W.  R.  762. 

3  Harg.  n.  Co.  Litt.  135  b.  8  Cro.  Eliz.  424  ;  Cro.  Jac.  5;  1  Co. 

4  Claridge  v.  Crawford,  1  Dowl.  &  Litt.  135  6,  Harg.  n.,  220  ;  Miles  y.  Boy- 
Ry.  13;  3  Robinson's  Pract.  230;  den,  3  Pick.  213;  Clark  v.  Turner,  1 
Younge  v.  Younge,  Cro.  Car.  86  ;  Good-  Root,  200  ;  Mockey  v.  Grey,  2  Johns, 
win  y.  Moore,  Cro.  Car.  101;  Apthorp  192;  Tiramons  ?'.  Timmons,  0  Ind.  8 ; 
V.  Backus,  Kirb}-,  407  ;  M'GiiBnr.  Stout,  Nicholson  v.  Wilborn,  13  Ga.  467. 
Coxe,  92;  Clackman  y.  Davis,  42  Ala.  9  2  Saund.  Plending,  207;  Bird  v. 
184.  Pegg,  5  B.  &  Aid.  418  ;  Finley  v.  Jowle, 

5  Thomas  v.  Dike,  11  Vt.  273  ;  Rob-  13  East,  0;  Apthorp  r.  Backus,  Kirby, 
son  V.  Osborn,  13  Te.x.  298.  407.     But  as  to  the  infant  himself,  see 

6  Hooks  V.  Smith,  18  Ala.  338.  Bird  v.  Pegg;  Jones  v.  Steele,  36  Mo. 

7  Barwick  r.  Rackley,  45  Ala.  215;  324. 
Martin  v.  Weyman,  20  Tex.  400;  Mills 

637 


§  4o0  THE   DOMESTIC   RELATIONS.  [PAKT  V. 

infancy  of  the  plaintiff  is  pleaded  in  abatement  to  a  suit 
brought  by  a  minor  in  his  own  name  without  any  guardian  or 
next  friend,  the  court  may  allow  the  infant  to  amend  by  in- 
serting in  his  writ  that  he  sues  by  A.,  his  next  friend. ^  Nor 
does  this  rule  deprive  the  infant  of  the  professional  services 
of  an  attorney ;  it  relates  to  the  parties  to  the  suit.^ 

§  450.  Action  at  Law  by  Infants  ;  The  Next  Friend.  —  Gener- 
ally speaking,  when  an  action  is  brought  by-  an  infant,  he 
sues  in  his  own  name  by  a  certain  person  as  next  friend.  A 
prochein  ami,  commencing  his  authority  with  the  writ  and 
declaration,  can  only  maintain  the  suit  for  such  causes  of 
action  as  may  be  prosecuted  without  special  demand  ;  as  for 
personal  injuries  done  to  the  infant,  or  for  sums  of  money 
where  the  writ  itself  is  considered  as  the  demand.^  In  Eng- 
land, it  was  once  considered  that  the  special  admission  of  a 
guardian  for  an  infant  to  appear  in  one  case  would  serve  for 
others.*  But  the  modern  rule  is  that  the  special  admission 
of  prochein  ami  or  guardian,  to  prosecute  or  defend  for  an 
infant,  shall  not  be  deemed  an  authority  to  prosecute  or  de- 
fend in  any  but  the  particular  action  specified.'^  Sometimes 
there  will  be  an  advantage  in  suing  by  guardian  if  this  can 
legally  be  done.^ 

The  guardian,  like  the  prochein  ami,  is,  in  English  practice, 
appointed  by  the  court  before  the  plaintiff  can  proceed  in  the 
action,  and  no  legal  right  of  parentage  or  of  guardianship  Avill 
enable  any  one  to  act  for  the  infant  without  such  appoint- 
ment.'' But  where  the  infant's  father,  being  a  necessary 
witness,  could  not  properly  be  prochein  ami  in  a  certain  suit, 
the  court,  on  motion,  appointed  a  friend  of  the  family  with 
the  father's  concurrence.^  And  the  father's  natural  right  to 
represent  his  child  as  next  friend  is  to  be  respected.^  No 
authority  from  the  infant  to  the  guardian  or  prochein  ami  to 

1  Blood  V.  Harrington,  8  Pick.  552.  6  ,3  Robinson's  Pract.  229. 

2  People   V.   New   York,  11    Wend.         7  Macpliers.  Inf.  353. 

164.  8  Claridge  v.  Crawford,  1  Dowl.  & 

3  Miles  V.  Boyden,  3  Pick.  219.  Ry.  13. 

*  Archer  v.  Frowde,  1  Stra.  304.  9  Woolf    v.   Pemberton,   0  Ch.   D. 

5  2  Saund.  Plead.   207;  Macpliers.     19. 
Inf.  353. 

638 


CHAP.  VI.]     ACTIONS    BY   AND    AGAINST   INFANTS.  §  450 

sue  is  necessary,  though  the  infant  be  on  the  very  eve  of 
majoiity  ;  but  it  is  intimated  that  the  court  might  interfere 
if  fraud  was  shown. ^  As  the  prochein  ami  is  an  officer  of  the 
court,  if  the  infant  wishes  him  removed  he  must  apply  to  the 
court  for  that  purpose,  and  an  entry  of  the  change  should  be 
made  of  record.^  But  on  the  plaintiff  coming  of  age,  he 
may,  it  seems,  remove  the  prochein  ami  of  his  own  authority, 
and  appear  thereafter  by  his  own  attorney.^ 

But  while,  in  theory,  the  prochein  ami  is  still  legally  ap- 
pointed by  the  court,  such  formalities  are  now,  in  practice, 
very  generally  waived.  In  Connecticut,  Massachusetts,  Vir- 
ginia, and  other  States,  no  entry  of  record  is  requisite  admit- 
ting a  person  to  sue  as  guardian  or  next  friend,  the  recital  in 
tlie  writ  and  count  being  deemed  sufficient  evidence  of  admis- 
sion unless  seasonably  challenged  by  the  opposite  party, 
when  the  order  may  be  supplied.^  In  New  York,  on  the 
other  hand,  a  prochein  ami  must  be  appointed  for  the  infant 
plaintiff  before  process  is  sued  out ;  and  such  is  the  practice  in 
some  other  parts  of  this  country.^  In  some  States  it  is 
deemed  proper  to  prove  infancy,  and  hence  the  right  to  sue 
by  next  friend.^ 

So,  too,  in  this  country,  more  deference  seems  to  be  shown 
to  the  infant's  wishes  than  in  England.  Thus,  in  IMassachu- 
setts,  the  court,  on  the  personal  petition  of  a  minor  twenty 
years  of  age,  withdrew  the  authority  of  the  prochein  ami^  and 
ordered  all  further  proceedings  in  the  suit  postponed  until 
the  minor  should  attain  full  years."  In  the  choice  of  a  guar- 
dian and  prochein  ami,  a  minor  above  fourteen  has  much 
latitude  of  discretion  ;  and   when  he  attains  full  age  he  may 


1  Morgan  v.  Thorne,  9  Dowl.  228.  7  Mass.  241  ;  Judson  v.  Blanchard,  3 
And  see  Barwick  ?;.  Rackley,  45  Ala.  Conn.  579;  Klaus  v.  State,  54  Miss. 
215.  644.     And   see   Stumps   v.   Kelley,  22 

2  Davies  v.  Locket,  4  Taunt.  7G5 ;  111.  140. 

Morgan  v.  Thorne,  supra.  ^  Wilder  v.  Ember,  12  Wend.  191 ; 

3  See  Bac.  Abr.  Infant,  K.  2  ;  Pat-  Haines  v.  Oatman,  2  Doug.  4-30;  Grant- 
ton  V.  Furthmier,  16  Kan.  29.  man  v.  Thrall,  44  Barb.  173. 

*  See   Guild   v.  Cranston,   8  Cnsh.  ^  Byers  v.   Des  Moines,  &c.   R.  R. 

506  ;   Boynton  v.   Clay,   58   Me.   236 ,  Co.,  21  Iowa,  54. 

Burwell   v.   Corbin,   1    Rand.   151 ;    3  ^  Guild  v.  Cranston,  8  Cush.  506. 
Robinson's  Pract.  230 ;  Trask  v.  Stone, 

639 


§  451  THE   DOMESTIC    RELATIONS.  [PART   V. 

enter  the  fact  upon  record,  and  without  farther  formality 
proceed  to  conduct  the  suit  for  himself.^ 

Where  an  infant  has  brought  an  action  by  his  next  friend, 
and  has  recovered  damages  which  have  been  received  by  the 
attorney,  the  money  is  the  money  of  the  infant,  and  he  may 
sue  tlie  attorney  for  it.^ 

A  prochein  ami  is  liable  for  costs,  and  the  remedy  is  against 
him  for  attachment,  which  should  be  absolute  in  the  first 
instance.^  This  is  the  English  practice.  It  would  appear 
that  execution  cannot  issue  against  the  infant  himself ;  and 
this  from  the  very  circumstance  that  the  next  friend  is,  in 
theory,  one  who  comes  forward  to  assume  all  such  liabilities.* 
But  in  conformity  with  statutes  in  Massachusetts,  it  is  held 
that  a  prochein  ami,  as  such,  is  not  liable  for  costs ;  ^  nor 
does  he  seem  to  be  always  strictly  considered  in  our  courts  a 
party  to  tlie  suit ;  ^  and  the  infant  plaintiff  is  made  liable  for 
his  own  costs.'^ 

§  451.  Action  at  Law  against  Infant;  the  Guardian  ad  Litem. 
An  infant  can  appear  and  defend  in  civil  suits  by  guardian 
only,  and  not  by  attorney,  or  in  person.^  The  process  is  the 
same  against  an  infant  as  in  ordinary  cases ;  but  he  needs 
some  one  to  conduct  his  defence,  and  hence  every  court, 
■wherein  an  infant  is  sued,  has  power  to  appoint  a  guardian 
ad  litem  for  the  special  purposes  of  the  suit,  since  otherwise 
he  might  be  without  assistance.^ 

1  Clark    V.    Watson,    2    Incl.    399;  the  infant's  own  testimony  of  age  in 

Shuttles  worth  v.  Hughey,  6  Rich.  329.  such    suits,   see   Hill  v.  Eldridge,  126 

-  Collins  V.  Brook,  4  Hurl.  &  Nor.  Mass.  234. 
276.     And  see  Smith  v.  Redus,  9  Ala.         5  Crandall  v.  Slaid,  11  Met.  288. 
99.  ^  Brown  v.  Hull,  16  Vt.  673. 

3  Xewton  V.  London,   Brighton,  &c.  7  Howett  v.  Alexander,  1  Dev.  431 ; 

R.  R.  Co.,  7  Dow.  &L.  328  (1849)  ;  Dow  Smith  v.  Floyd,  1  Pick.  275.     Cf.  stat- 

V.    Clark,  2  Dowl.  ,302.     See  Price  v.  utes  of  other  States,  Kleffel  v.  Bullock, 

Duggan,  4  Man.  &  Gr.  225.  8  Neb.  336. 

*  lb.;  Stephenson  v.   Stephenson,  3  «  Co.  Litt.  88  h,  n.  16,  135  h;  2  Stra. 

Hey.  123 ;    Perryman    v.    Burgstcr,   6  784 ;  Macphers.  Inf.  358 ;  Alderman  v. 

I'ort.    (Ala.)  199;  Sproule  v.  Botts,  5  Tirrell,  8  Johns.  418 ;  Knapp  ?•.  Crosby, 

J.  J.  Marsh.  102.     But  see  Proudfoot  1  Mass.  479;  Miles  v.  Boyden,  3  Pick, 

r.  Poile,  3  Dow.  &  L.   524;  Macphers.  213;   Bedell  y.  Lewis,  4  .J.  J.   Marsh. 

Inf.  356,  357,  and  cases  cited.     As  to  562 ;  Starbird  v.  Moore,  21  Vt.  529. 
practice  under  New   York   Code,    see  ^  Bac.  Abr.  Guardian,  B.  4. 

Linner  v.  Grouse,  61  Barb.  289.     As  to 

640 


CHAP.  VI.]     ACTIONS   BY    AND   AGAINST   INFANTS.  §  451 

A  guardian  ad  litem  is  one  appointed  for  the  infant  to 
defend  in  the  particular  action  brought  against  him,  and  is 
therefore  to  be  distinguished  from  guardians  of  the  person 
and  estate.!  jf  there  be  a  general  chancery,  probate,  or  tes- 
tamentary guardian  already  appointed,  it  is  his  place  to  de- 
fend the  infant  from  all  suits,  so  long  as  his  authority  over 
the  infant's  property  continues  and  his  interest  is  not  adverse 
in  the  suit ;  this  being,  however,  a  matter  usually  regulated 
in  this  country  by  statute.^  This  guardian  ought  to  be  a 
person  with  no  interests  to  regard  except  those  of  the  infant 
defendant.^ 

What  has  been  observed  of  the  appointment  of  prochein 
ami  may  be  said,  in  general,  of  that  of  the  guardian  ad  litem. 
The  two  correspond,  and  the  principles  of  law  applicable  to 
the  one  are  in  general  to  be  applied  to  the  other.'*  In  a  crim- 
inal case  no  guardian  ad  litem  is  appointed.  But  in  a  civil 
case,  proceedings  against  an  infant  are  liable  to  be  reversed 
and  set  aside  for  irregularity,  where  no  guardian  ad  litem  has 
been  appointed  for  him,  unless,  perhaps,  his  regular  guardian 
has  appeared  in  his  defence  ;  and  process  must,  besides,  have 
been  first  regularly  served  upon  the  infant ;  though  in  this 
latter  respect  the  rule  of  the  several  States  is  not  uniform.^ 
Irregularities  of  procedure  or  delay  in  the  appointment  are 
often  cured  by  the  judgment ;  and  lapse  of  time  and  laches  on 
the  part  of  an  infant  after  reaching  majority  may  leave  him 
altogether  without  an  opportunity  to  set  the  judgment  aside, 

1  Larkin  v.  Mann,  2  Paige,  27  ;  soil  v.  Ingersoll,  42  Miss.  155  ;  Irwin  v. 
Roberts  r.  Stanton,  2  Munf.  12'J  ;  Bac.  Irwin,  57  Ala.  614;  Helms  v.  Chad- 
Abr.  Guardian,  supra,  cases  cited  by  bourne,  45  Wis.  60.  A  judgment  ren- 
Bouvier.  dered    against   a    minor   without    the 

2  See  Hughes  v.  Seller,  34  Ind.  337.  appointment   of  a  guardian  nd  litem  is 

3  Hence  the  plaintiff's  liusband  not  void,  but  rather  voidable.  Walken- 
should  not  be  appointed.  Bicknell  v.  liorst  v.  Lewis,  24  Kan.  420.  Some 
Bicknell,  72  N.  C.  127.  local  statutes  provide  for  the  infant's 

*  See  Macphers.  Inf.  358.  modification    of    a    judgment   against 

^  See  Abdil  v.  Abdil,  26  Ind.  287;  him  witiiin  a  year   after   arriving   at 

Jarman  v.  Lucas,  15  C.  B.  n.  s.  474  ;  age.     Richards  v.   Ricliards,   10   Bush, 

Frierson    v.    Travis,  39   Ala.   150.     In  617.     But  the  judgment  is  prima  facie 

some  States   it  is  required  by  statute  correct,  and  errors  must  be  prejudicial 

that  process  shall  be  served  upon  the  to  the  infant's  interest  in   order  to  be 

infant  defendant  personally,  also  upon  tln]s  availed  of.     Richards  v.  Richards, 

his  father,  mother,  or  guardian.     Inger-  10  Bush,  617. 

41  641 


§  451  THE   DOMESTIC   RELATIONS.  [PART   V. 

especially  if  no  prejudice  has  resulted,  as  in  the  case  of  his 
voidable  transactions.^ 

The  writ  and  declaration  in  actions  at  law  against  infants 
are  to  be  made  out  as  in  ordinary  cases.  In  English  practice, 
where  the  defendant  neglects  to  appear,  or  appears  otlierwise 
than  by  guardian,  the  plaintiff  may  apply  for  and  obtain  a 
summons,  calling  on  him  to  appear  by  guardian  within  a 
given  time  ;  otherwise  the  plaintiff  may  be  at  liberty  to  pro- 
ceed as  in  other  cases,  having  had  a  nominal  guardian 
assigned  to  the  infant.^  A  like  rule  prevails  in  New  York 
and  other  States.^  Courts  will  go  so  far  to  protect  an  infant 
as  to  see  that  process  is  properly  served,  a  guardian  ad  litem 
appointed  for  him,  and  the.formal  answer  filed.* 

Infancy  may  be  specially  pleaded  in  bar.^  The  plaintiff  re- 
plies either  that  the  defendant  was  of  age  or  that  the  goods 
were  necessaries,  or  that  he  confirmed  the  contract  when  he 
came  of  age.  If  there  be  several  defendants,  the  party  who 
is  a  minor  should  plead  his  infancy  separately.  Infancy  is  an 
issuable  plea ;  and  it  ma}^  be  pleaded  with  other  pleas  with- 
out leave  of  court.^  Where  there  are  several  issues,  one  of 
which  is  upon  the  plea  of  infancy,  that  being  found  for  the 
infant,  the  whole  case  is  disposed  of.'^  In  New  York,  infancy 
ma}^  be  given  in  evidence  under  the  general  issue.^ 

An  infant  defendant  is  liable  to  costs  in  the  same  manner 
as  any  other  defendant,  notwithstanding  he  has  a  guardian.^ 
Macpherson  says  that  the  guardian  of  an  infant  defendant  is 
subject  to  the  same  liability  for  costs  as  the  prochein  ami,  or 
the  guardian  of  an  infant  plaintiff. ^*^    No  authority  is  given  for 


'  See    Townsend   v.   Cox,   45   Mo.         ^  Clemson   v.  Bush,   3   Binn.   413; 

401 ;    Barnard  v.    Ileydrick,   49  Barb.  Hillegass  v.  Hillegass,  5  Barr,  97. 
62 ;  McMurray  v.  McMurray,  60  Barb.  6  15   &  i6  Vict.    c.   7G,  §   84.     See 

117;    Wickersham     v.    Timnions,    49  Delafield   v.   Tanner,    5    Taunt.    850; 

Iowa,  267  ;   Maples  v.  Maples,  3  Houst.  Dublin  &  Wicklow  R.  R.  Co.  r.  Black, 

458.  8  Exch.  181. 

■^  See  Macpliers.  Inf.  359.  "^  Rohrcr   v.  Morningstar,  18  Ohio, 

3  Van  Deusen  v.   Brower,  6  Cow.  579. 
50;  Judson   v.    Storer,    2   South.  544;  »  Wailing  y.  Toll,  9  Johns.  141. 

Clarke  ;;.  Gilmanton,  12  N.  H.  515.  ^  Anderson  v.    Warde,   Dyer,    104; 

*  Alexander  v.  Frary,  9  Ind.  481.  Gardiner  v.  Holt,  Stra.  1217. 


10  Macphers.  Inf.  301. 


642 


CHAP.  VI.]     ACTIONS   BY   AND   AGAINST   INFANTS.  §  452 

this  statement,  and  it  seems  that  the  guardian  of  an  infant 
defendant  is  not  liable.^ 

If  an  infant  comes  of  age  pending  the  suit,  he  can  assert 
his  rights  at  once  for  himself,  and  if  he  does  not  he  cannot 
generally  complain  of  the  acts  of  his  guardian  ad  litem. 
Where  a  person  is  of  age  and  sui  juris  it  is  error  to  appoint 
a  guardian  ad  litem? 

§  452.  Chancery  Proceedings  by  or  against  Infants ;  Correspond- 
ing Rule.  —  The  same  leading  principles  noticeable  in  suits  at 
law  are  to  be  recognized  in  equity  proceedings  by  or  against 
infants ;  and  the  doctrines  of  next  friend  and  guardian  ad 
litem  receive  ample  discussion  in  the  chancery  courts.^ 

Among  the  miscellaneous  matters  of  chancery  practice  re- 
lating to  infants  may  be  mentioned  proceedings  in  partition, 
orders  for  maintenance  and  education,  the  management  of 
trust  funds  by  guardians  and  other  trustees,  and  the  award 
of  custody.  These  subjects  have  already  been  incidentally 
considered  in  the  course  of  this  treatise.  And  we  need  only 
add  that,  in  the  appointment  of  guardians  ad  litem,  courts  of 
chancery  will  exercise  a  liberal  discretion ;  that  in  all  pro- 
ceedings of  this  character,  the  appointment  of  a  guardian  ad 
litem  to  appear  in  behalf  of  infants  interested  in  the  proceed- 
ings is  regarded  as  proper  and  even  necessary,  when  they 
have  no  general  guardian  or  the  general  guardian  has  an 
adverse  interest ;  that  personal  service  upon  the  infants, 
besides,  is  usually  requisite ;  and  that  a  decree  rendered 
without  observance  of  such  formalities  may  be  reversed  for 
error.*  It  is  the  rule  in  many  States,  as  it  was  the  old  practice 
in  chancery,  to  allow  an  infant  his  day,  after  he  attains  majority, 
to  set  aside  a  decree  against  him  ;  thus,  in  effect,  rendering 

1  See  Ferryman  v.  Burgster,  6  Port.  ^  g^g  1  Daniell  Cli.  PI.  3d  Am.  ed. 
(Ala.)  199.  Such  guardian  should  at  Qbrtseq.;  ?'i.  150  e^  seg'.,  where  the  Eng- 
all  events  be  reimbursed  all  reasonable  lish  and  American  authorities  are  very 
charges  incurred  in  the  case.     Smith  v.  fully  cited. 

Smith,  69  111.  308.  *  lb.     And  see  Rhett  v.  Martin,  43 

2  Mitchell  V.  Berry,  1  Met.  (Ky.)  Ala.  86;  Girty  v.  Logan,  6  Bush,  8; 
602.  And  see  Marshall ;;.  Wing,  50  Me.  Rhoads  v.  Rhoads,  4.3  111.  2-39  ;  Swain 
62;  Stupp  V.  Holmes,  48  Mo.  89;  Bur-  v.  Fidelity  Ins.  Co.,  54  Penn.  St.  455; 
sen  V.  Goodspeed,  60  111.  277  ;  Patton  Ivey  v.  Ingram,  4  Cold.  129. 

V.  Furthmier,  16  Kan.  29. 

643 


453 


THE   DOMESTIC   RELATIONS. 


[part  V. 


such  decrees  in  chancery  voidable  rather  than  binding,  so  far 
as  he  is  concerned,  and  treating  him  more  than  ever  upon  the 
footing  of  a  privileged  person  ;^  for  it  is  not  too  much  to  say- 
that  at  all  times  and  under  all  circumstances  infants  are 
especial  favorites  of  our  law. 

§  453.  Binding  Effect  of  Decree  or  Judgment,  upon  the  In- 
fant. —  An  infant  defendant  is  as  much  bound  by  a  decree  in 
equity,  rendered  upon  due  jurisdiction  and  fairly, —  as  a  person 
of  full  age  ;  therefore,  if  there  be  an  absolute  decree  made 
against  a  defendant  who  is  under  age,  and  who  has  reguharly 
appeared  by  a  guardian  ad  litem  and  has  been  served  with 
process,  he  will  not  be  permitted  to  dispute  it  unless  upon 
the  same  grounds  as  an  adult  might  have  disputed  it ;  such 


1  Simpson  v.  Alexander,  6  Cold. 
619 ;  Kuchenbeiser  v.  Beckert,  41  111. 
173;  1  Daniell  Ch.  PI.  3d  Am.  ed.  71, 
167.  Rule  now  abrogated  in  some 
States.  Phillips  v.  Dusenberry,  15  N.  Y. 
Supr.  318.  It  does  not  apply  to  an  in- 
fant trustee.  Walsh  v.  Walsh,  116 
Mass.  377.  And  see  O'Rorke  v.  Bolin- 
broke,  2  App.  Cas.  Sl-l. 

Concerning  the  appointment,  the 
court's  discretion  is  favored  as  in  other 
interlocutory  proceedings.  Walker  v. 
Hull,  3-5  Mich.  488.  Giving  security  for 
costs  will  not  obviate  the  necessity  of 
suing  in  the  name  of  next  friend  or 
guardian.  Sutton  v.  Nichols,  20  Kan.  43. 
A  fund  in  chancery  should  not  he  given 
up  without  securing  the  legal  costs,  &c., 
of  the  guardian  ad  litem  or  his  solicitor. 
Sheahan  v.  Circuit  Judge,  42  Mich.  69. 
As  to  infant  married  woman's  guardian 
ad  litem  or  ne.xt  friend,  see  Ex  parte  Post, 
47  Ind.  142.  General  guardians  do  not 
represent  their  wards  in  foreclosure 
proceedings,  but  a  guardian  ad  litem 
is  proper.  Sheahan  v.  Circuit  Judge, 
42  Mich.  69.  Where  the  infant's  pro- 
bate guardian  has  an  adverse  interest 
in  the  suit,  there  should  be  a  guardian 
ad  litem  appointed.  Stinson  v.  Picker- 
ing, 70  Me.  273.  Though  service  on 
the  infant  is  the  regular  rule  (supra, 
§  448),  it  is  held  in  some  States  that  a 
regular  guardian  may  defend,  and  may 

644 


waive  the  service  of  process,  even 
where  the  minor's  realtj'  is  involved. 
Scott  V.  Porter,  2  Lea,  224 ;  Walker  v. 
Veno,  6  Rich.  459.  As  to  infant's 
acceptance  of  service  see  Wheeler  v. 
Ahenbeak,  54  Tex.  535. 

A  guardian  ad  litem  cannot  admit 
away  the  substantial  rights  of  infants : 
his  passiveness  will  not  be  construed 
into  a  waiver ;  nor  will  a  bill  in  equity 
be  taken  as  confessed  against  an  in- 
fant. Lane  v.  Hardwicke,  9  Beav.  148; 
Tucker  v.  Bean,  65  Me.  352  ;  Mills  v. 
Dennis,  3  .Johns.  Ch.  307 ;  Turner  v. 
Jenkins,  79  III.  228  ;  Jones  v.  Jones,  56 
Ala.  612. 

An  infant  may  by  original  bill  im- 
peach a  decree  in  favor  of  his  guardian 
and  prejudicial  to  his  own  interests; 
nor,  on  general  chancery  rules,  need  he 
wait  until  attaining  full  age.  Sledge  v. 
Boone,  57  Miss.  222.  A  decree  not 
appealed  from  is  held  binding  upon 
an  infant  in  the  absence  of  fraud,  who- 
ever may  have  been  his  guardian  ad 
litem,  process  having  been  duly  served 
on  the  infant.  McCro.sky  v.  Parks, 
13  S.  C.  90;  Cuyler  v.  Wayne,  64  Ga. 
78.  What  has  been  decreed  will  be 
presumed  rightly  done.  Whether  guar- 
dian ad  litem  or  prochein  ami  can  sub- 
mit an  infant's  interests  to  arbitra- 
tion, see  Tucker  v.  Dabbs,  12  Heisk. 
18. 


CHAP.  VI.]     ACTIONS    BY   AND   AGAINST   INFANTS. 


§453 


as  fraud,  collusion,  or  fundamental  error.^  As  to  the  binding 
force  of  judgments  at  law,  the  rule  does  not  seem  to  be 
equally  strong.^  But  where  a  defendant  in  a  suit  is  a  minor 
at  the  time  of  sei'vice  of  summons,  and  the  record  shows 
that  he  becomes  of  full  age  before  the  judgment  is  taken,  a 
court  is  disposed  to  uphold  the  judgment  unless  it  can  be 
impeached  for  fraud.^  In  some  States,  doubtless  both  judg- 
ments at  law  and  decrees  of  equity  now  stand  on  the  same 
conclusive  footing,  and  the  infant  has  not  his  opportunity  to 
show  cause  as  to  either  class  on  reaching  majority,  except 
on  the  grounds  above  stated.* 


1  1  Dan.  Ch.  Practice,  205  ;  Rivers 
V.  Durr,  46  Ala.  418;  Ralston  v.  Laliee, 
8  Clarke  (Iowa),  17;  In  re  Livingston, 
34  N.  Y.  555,  supra,  §  448.  And  see,  as 
to  allowing  the  infant  his  day,  §  542. 
But  see  Tibbs  v.  Allen,  27  111.  119; 
Driver  v.  Driver,  6  Ind.  286;  Aslitou 
V.  Ashton,  35  Md.  496. 

2  Supra,  §  407. 

8  Stupp  V.  Holmes,  48  Mo.  89.  And 
see  Blake  v.  Douglass,  27  Ind.  416. 

*  Phillips  V.  Dusenberry,  15  N.  Y. 
Supr.  348  ;  Bickei  v.  Erskine,  43  Iowa, 
213.  As  to  either  guardian  ad  litem  or 
procheiii  ami,  he  is  not  a  party  to  an 
action  in  such  sense  that  his  relation- 
ship to  the  judge  disqualifies  the  latter 
from  sitting  in  tlie  case.  Sinclair  v. 
Sinclair,  13  M.  &  W.  646  ;  Bryant  ;;. 
Livermore,  20  Minn.  313,  342,  and  cases 
cited. 

A  person  of  unsound  mind  allowed 


to  prosecute  ejectment  in  his  own  name. 
Rankin  v.  Warner,  2  Lea,  302.  Gen- 
erally the  contracts  of  a  lunatic's  guar- 
dian bind  himself  personally,  and  not 
immediately  the  estate  he  represents 
{supra,  Part  IV.  c.  6)  ;  but  an  action  at 
law  is  as  a  rule  maintainable  against  an 
adult  lunatic  to  recover  a  debt  due  from 
him  before  he  became  insane,  and  this 
without  the  intervention  of  guardian  ad 
litem.  Hines  v.  Potts,  56  Miss.  346 ; 
Stigers  v.  Brent,  50  Md.  214.  A  person 
of  unsound  mind  may  file  a  bill  in 
equity  by  next  friend,  either  before  or 
after  an  inquisition  of  lunacy,  where 
there  is  no  guardian  or  committee. 
Parsons  v.  Kinzer,  3  Lea,  342.  But 
while  this  is  the  old  rule,  it  is  not  uni- 
versally sustained  at  the  present  day. 
Dorsheimer  v.  Roorback,  3  C.  E.  Green, 
440;  Beall  v.  Smith,  L.  R.  9  Ch.  85. 


645 


PART  VI. 

MASTER   AND   SERVANT. 


CHAPTER   I. 


NATURE  OF   THE   EELATION ;    HOW  CREATED   AND   HOW 
TERMINATED. 

§  454.  Definition ;  this  not  strictly  a  Domestic  Relation.  —  A 
master  is  one  who  has  legal  authority  over  another ;  and  the 
person  over  whom  such  authority  ma}^  be  rightfully  exercised 
is  his  servant.  Tiie  relation  of  master  and  servant  pre-sup- 
poses  two  parties  who  stand  on  an  unequal  footing  in  their 
mutual  dealings  ;  yet  not  naturall}^  so,  as  in  other  domestic 
relations,  nor  necessarily  because  the  subordinate  is  wanting 
in  either  years  or  discretion.  This  relation  is,  in  theory, 
hostile  to  the  genius  of  free  institutions.  It  bears  the  marks 
of  social  caste.  Hence  it  may  be  pronounced  as  a  relation 
of  more  general  importance  in  ancient  than  in  modern  times, 
and  better  applicable  at  this  day  to  English  than  American 
society. 

Master  and  servant  has,  nevertheless,  been  uniformly  re- 
garded as  one  of  the  domestic  relations.  In  lands  where 
human  slavery  is  lawfully  recognized,  it  is  pre-eminently  so  ; 
and  thus  were  its  foundations  deeply  laid  in  the  civil  law. 
In  the  early  days  of  the  common  law,  it  formed  a  distinct 
part  of  the  English  household  jurisprudence  ;  and  in  a  state 
of  society  where  landed  proprietors  are  few  and  wealthy, 
where  rank  and  titles  are  maintained  with  ostentatious  dis- 
.646 


CHAP.  I.]  NATURE   OF   THE  RELATION.  §  454 

play,  where  the  humble  born  are  taught  to  obey,  rather  than 
aspire,  this  must  so  continue.  Not  only  cooks,  butlers,  and 
housemaids  are  thus  brought  within  the  scope  of  this  relation, 
but  farm-hands,  plantation  laborers,  stewards,  bailiffs,  factors, 
famil}'-  chaplains,  and  legal  advisers. 

Thus  is  explained  what  at  first  may  seem  an  anomaly,  that 
the  common  law,  under  the  head  of  master  and  servant,  dis- 
cusses principles  which,  in  this  day,  belong  more  justly  to  the 
relation  of  principal  and  agent ;  and  that  we  constantly  find 
an  offensive  term  used  in  court  to  denote,  duties  and  obliga- 
tions which  rest  upon  the  pure  contract  of  hiring.  Clerks, 
salaried  officers,  brokers,  commission  merchants,  all  are  desig- 
nated as  servants  ;  and  our  topic  in  this  broad  sense  is  not,  if 
words  mean  anything,  within  the  influence  of  the  domestic 
law  at  all.  Nor  is  it  possible  to  extend  the  lines  so  as  to 
include  these  persons  without  abandoning  consistency  of 
purpose,  and  yielding  up  the  vital  principle  of  legal  classi- 
fication. 

Were  the  writer  then  untrammelled  by  authority,  his  treat- 
ment of  this  topic,  as  one  of  the  domestic  relations,  would  be 
confined  to  what  are  denominated  at  common  law  menial 
servants,  so  called  from  being  intra  moeriia  ;  or  rather  to  do- 
mestic servants,  extending  the  definition  to  all  such  as  are 
employed  in  and  about  a  family  in  carrying  on  the  household 
concerns,  whether  their  occupations  be  within  or  without 
doors,  so  long  as  they  constitute  part  of  the  family.  In  this 
restricted  sense,  the  law  of  master  and  servant  is  manifestly 
of  little  importance  to-day.  But,  as  the  reader  may  have  per- 
ceived on  perusal  of  the  topic  of  guardian  and  ward,  legal 
precision  must  sometimes  be  sacrificed  to  legal  usage  ;  and 
as  terms  have  been  carried  in  both  instances  beyond  their 
original  signification,  for  the  sake  of  analogy,  we  are  bound 
to  follow  a  certain  distance,  even  though  it  be  into  logical 
confusion. 

How  much  the  law  of  master  and  servant  is  understood  to 
mean  may  be  gathered  from  the  books.  Blackstone  compre- 
hends under  this  head  slaves,  menial  servants,  apprentices, 
hired  laborers,  and  servants  pro  tempore^  such  as  stewards, 

647 


§  455  THE   DOMESTIC   KELATIONS.  [PAET   VI. 

factors,  and  bailiffs,  and  lie  thereupon  proceeds  to  discuss 
principles  applicable  to  all  such  classes  alike.^  Reeve  carries 
the  discussion  still  further,  as  to  factors,  brokers,  attorneys, 
and  agents  generally.^  Kent,  writing  for  later  readers,  with  a 
clearer  appreciation  of  his  limits,  classifies  into  slaves,  hired 
servants,  and  apprentices,  and  confines  his  discussion  more 
carefully  to  what  might  subserve  the  wants  of  the  domestic 
law ;  yet  not  with  exactness.^  None  of  these  writers  erred 
in  their  general  views  ;  the  principles  of  the  law  had  already 
spread  out  with  the  growth  of  society  in  such  a  manner  that 
they  were  obliged  to  follow  the  authorities.  For  the  same 
reason  the  present  writer,  keeping  in  view  the  natural  boun- 
daries of  his  subject,  will  nevertheless  take  a  somewhat  com- 
prehensive and  desultory  range  ;  thereby  meeting  better  the 
practical  wants  of  the  lawyer,  and  satisfying  a  reasonable  ex- 
pectation. 

§  455.  Rule  of  Classification  as  to  Master  and  Servant.  — 
Slavery,  for  obvious  reasons,  need  no  longer  be  treated  as  a 
branch  of  our  law  of  master  and  servant.  We  come  first, 
then,  to  hired  servants,  or  servants  proper  ;  and  as  to  these 
the  contract  between  them  and  their  masters  arises  upon  the 
hiring  ;  the  servant  being  bound  to  render  the  service,  and 
the  master  to  pay  the  stipulated  consideration.*  The  next 
class  is  that  of  apprentices:  fairly  distinguishable,  as  compris- 
ing such,  usually  minors,  as  are  bound  out  under  public  stat- 
utes, and  over  whom,  by  reason  of  their  tender  years,  and  in 
accordance  with  the  spirit  of  such  statutes,  tlie  master  stands 
somewhat  in  the  stead  of  a  parent.  Yet  apprentices  might 
be  bound  out  merely  to  learn  a  trade,  and  as  part  of  the  edu- 
cation furnished  by  their  judicious  parents  ;  and  Blackstone 
mentions  that  very  large  sums  were  sometimes  given  with 
them  for  their  instruction  at  his  day.^  Thirdly,  persons  cora- 
monlj'  known  in  popular  speech  as  workmen  or  employees,  who 
are  brought  within  the  principles  of  one  or  both  of  the  two 
preceding  classes,  and  to  whom  the  relation  of  master  and 

1  1  Bl.  Com.  ch.  14.  *   1  Bl.  Com.  425 ;  2  Kent  Com.  258. 

2  Reeve  Dom.  Rel.  339  et  seq.  ^  See  1  Bl.  Com.  42G ;  2  Kent  Com. 
a  2  Kent  Com.  Lee.  32.                           263,  264. 

648 


CHAP.  I.]  NATUKE   OF   THE  RELATION.  §  45G 

servant  may  well  be  said  to  apply.  In  this  class  are  included 
day  laborers,  factoiy  operatives,  miners,  colliers,  and  numer- 
ous others,  of  whom  nothing  more  definite  can  be  said  than 
that  they  are  hired  to  perform  services  of  a  somewhat  unam- 
bitious character.  If  to  these  be  added  all  other  occupations 
to  which  the  same  rules  are  from  time  to  time  applied  in  the 
courts,  it  is  gratifying  to  reflect  that  the  servant  is  frequently 
the  social  equal,  or  even  the  superior,  of  his  master.  But  let  us 
invert  the  order,  disregarding  general  service  for  the  present. 
In  other  words,  let  us  glance  rapidly  at  the  relation  first  of 
workmen  and  next  of  apprentices ;  then  we  can  consider  the 
relation  of  hired  servants  in  its  wider  sense  more  at  our  leisure. 

§  45 G.  Relation  of  Master  and  Workman ;  Courts  of  Concilia- 
tion;  Trade  Unions,  &c.  —  First.  The  rights  of  workmen  or 
employees  furnish  a  fruitful  topic  for  legislation.  And  so 
widely  do  the  English  and  American  systems  differ  in  these 
and  kindred  matters,  that  judicial  precedents  may  not  always 
be  safely  interchanged  between  the  two  nations.  Further  is  it 
to  be  remarked  that  apprentices  and  workmen  are  very  gen- 
erally affected  by  the  same  statutes. 

Prior  to  1824,  English  industrial  legislation  leaned  decidedly 
in  favor  of  the  master.  Trade  monopolies,  of  which  Sir  Ed- 
ward Coke  complained  so  justly,  were  indeed  greatly  restricted 
in  the  time  of  James  I.  ;^  yet  their  influence  was  felt  down  to 
a  much  later  period  ;  and  certain  corporations  and  guilds  en- 
joyed exclusive  privileges,  which  obstructed  almost  entirely 
the  enterprise  of  individuals.  Attempts  were  made  from  time 
to  time  to  better  the  condition  of  the  working  classes,  and  to 
regulate  the  payment  of  their  wages  ;  but  while  fines  and  im- 
prisonment were  the  punishment  of  the  employed,  the  em- 
ployer suffered  rarely  for  his  own  misconduct  beyond  rescission 
of  the  contract.^  To  exercise  a  trade  in  any  town  without 
having  previously  served  an  apprenticeship  of  seven  years 
was  a  penal  offence.^  So,  to  entice  or  seduce  artisans  to  settle 
abroad  and  communicate  their  knowledge,  to  engage  in  the 

13  Inst.  181.  See  4  Bl.  Com.  III.  c.  25;  Macdonald  Hand-book,  70, 
159.  &c. ;  1  Bl.  Com.  420,427. 

2  See  Acts  20  Geo.  II.  c.  19;  6  Geo.         3  4  b1.  Com.  160. 

649 


§  456  THE   DOMESTIC   RELATIONS.  [PART    VI. 

export  of  machiner}^  all  this  was  criminal,  and  punished  with 
severity,  the  object  proposed  by  such  legislation  being  to  pre- 
vent the  destruction  of  home  manufactures.^  An  important 
act,  passed  in  May,  1823,  was  calculated  to  ameliorate  the 
condition  of  workmen,  by  enlarging  the  powers  of  magistrates 
on  behalf  of  apprentices  ;  yet  English  petty  magisti-ates  were 
always  inclined  to  obsequiousness,  and  their  tribunals  had  not 
the  confidence  of  the  working  classes,  as  remains  the  fact  to 
this  day. 

Public  sentiment  of  later  years,  however,  has  undergone  a 
great  change,  and  class  legislation  has  fallen  into  comparative 
disrepute.  No  principle  so  beneficial  to  workmen  has  been  in- 
troduced as  that  of  arbitration.  This  doctrine  of  arbitration 
appears  distinctly  set  out  in  the  act  5  Geo.  IV.  c.  96,  of  1824, 
a  consolidating  statute  which  gets  rid  of  former  inequalities, 
and  marks  the  latest  era  in  English  industrial  legislation. 
Yet  the  arbitration  provisions  of  this  act  are  said  not  to  have 
worked  well  in  practice,  partly,  as  a  writer  suggests,  because 
of  the  requisite  intervention  of  a  justice  of  the  peace,  partly 
from  its  lack  of  simplicity .^  But  a  very  recent  act  establishes 
"  equitable  councils  of  conciliation"  to  adjust  differences  be- 
tween masters  and  workmen,  upon  a  plan  much  resembling 
the  French  courts  of  Prud' hommes.^  The  plan  is,  that  masters 
and  workmen  shall  each  elect  their  own  delegates  to  a  board 
or  council,  which  is  empowered  to  fix  upon  the  rate  of  wages 
between  employer  and  employed,  and  otherwise  adjust  dis- 
putes peculiarly  appertaining  to  such  service.*  And  a  still 
later  act  sets  forth  the  details  of  such  agreements  quite  fully, 
and  further  provides  for  the  designation  of  arbitrators  in  case 
of  a  disagreement.^ 

1  lb.  tion ;   and  though  there  was  then  no 

2  Macdonald  Handyboob,  137,  —  a  statute  countenancing  such  a  court, 
small  and  convenient  compendium  pub-  manufacturers  elsewliere  were  soon  led 
lished  in  1868.  to  adopt  the  system  from  its  manifest 

3  30  &  31  Vict.  c.  105  (1867).  convenience.      To    introduce    sucli    a 
*  This  experiment  had  been  tried  in     court  into  England  is  said  to  have  been 

the  English  manufacturing  districts  for  a  favorite  speculation  of  the  late  Lord 

some  years  previous  to  tiie  pnssage  of  Brougham.      See   Macdonald   Handy- 

the  act,  and  witli  marked  success.     A  book,  '274. 

celebrated   strike    at    Nottingham,    in  ^  35  &  36  Vict.  August  6,  1872.    The 

1860,  led  to  its  first  practical  applica-  principle  of  arbitration  in  the  matter 

650 


CHAP.  I.]       NATURE  OF  THE  RELATION.  §  457 

There  is  comparatively  little  legislation  of  this  sort  to  be 
found  in  our  States.  Trade  is  less  fettered  in  Americg,  than 
it  w-as  in  England  ;  and  disputes  between  master  and  servant 
have  been  generally  adjusted  between  themselves  or  by  the 
ordinary  legal  methods.  The  fluctuation  of  society  in  America, 
the  variety  of  pursuits  always  open  to  active  competitors,  the 
opportunities  freely  afforded  for  social  elevation,  together  with 
the  fact  of  a  wider  distribution  of  our  manufacturing  popu- 
lation than  in  England,  contribute  to  the  difference.  The  em- 
ployee of  to-day  becomes  the  employer  of  to-morrow.  Yet 
humane  laws  are  frequently  enacted,  and  still  more  frequently 
called  for.  In  Connecticut,  Pennsylvania,  and  other  States, 
children  are  siDCcially  protected  from  laborious  toil  unsuited 
to  their  years,  and  the  hours  of  work  in  the  mills  are  reduced 
to  a  proper  limit. ^  And  young  children  are  to  be  taught  the 
necessary  branches  of  a  common  education,  notwithstanding 
their  employment  in  manual  labor. ^ 

Trade  associations  are  often  formed  in  both  countries  to 
protect  the  rights  of  workmen  in  certain  mechanical  pursuits. 
But  arbitrary  and  oppressive  conduct  on  the  part  of  such 
associations  is  not  to  be  countenanced.  Thus,  where  a  trade 
association  conspires  to  break  down  the  business  of  a  master 
mechanic,  because  he  will  not  pay  a  sum  demanded,  by  inter- 
fering with  his  employment  of  workmen,  he  may  sue  them 
for  damages.^ 

§457.  Relation  of  Master  and  Apprentice.  —  Second.  The 
relation  of  apprentice  was,  in  its  original  spirit  and  policy, 
as  Kent  has  observed,  calculated  to  give  the  apprentice  a 
thorough  trade  education,  and  to  advance  the  mechanic  arts.* 


of  trade  disputes  was  adopted  in  1872  Vict.  c.  1.5;    10  Vict,  c  29;    16  &  17 

by  niastcr-biiilders   and   masons  on  a  Vict.  c.  104;  24  &  25  Vict.  c.  117;  30 

strike,  upon  tlie  recommendation  of  a  &  31  Vict.  c.  103. 

committee  of  the  Social  Science  Asso-  3  Carew  v.  Rutherford,  106  Mass.  1; 

ciation.  Walker  v.  Cronin,  107  Mass.  555.     The 

1  See  2  Kent  Com.  12th  ed.  266,  and  members  of  such  an  association  who 
notes  referring  to  statutes  of  Pennsyl-  ui)hold  a  strike  may,  in  a  stronj;  case  of 
vania,  Maine,  New  Hampshire,  Con-  oppression,  be  indicted  for  a  conspiracy, 
necticut,  and  New  Jersey.  Commonwealth    v.   Curren,   3   Pittsb. 

2  There  are  similar  acts  in  Enjiland  143.     And  see /w.?/,  c.  4. 
lately  passed.      See   Factory   Acts,  7  *  2  Kent  Com.  266. 

651 


§  457  THE   DOMESTIC  KELATIONS.  [PART   VI. 

To  some  extent,  it  has  that  significance  still.  The  English 
apprentice  system,  beyond  what  has  just  been  noticed  of 
working-men  generally,  has,  however,  referred  more  especially 
to  the  poor  or  parish  apprentices,  who,  under  a  late  act,  may 
be  bound  out  to  the  sea  service  as  well  as  a  trade.^  In  many 
American  States  there  appear  to  exist  no  provisions  for  bind- 
ing out  others  than  poor  children  and  orphans.  Again,  in 
other  States,  as  New  York,  Massachusetts,  and  Pennsylvania, 
the  provisions  are  more  general.^  The  principle  of  such  stat- 
utes is  to  permit  those  having  custody  to  assign  to  strangers 
a  certain  authority  over  their  children,  until  the  latter  reach 
majority  ;  and  town  authorities,  or  overseers  of  the  poor, 
may,  in  many  instances,  supply  the  want  of  natural  protectors 
and  keep  the  3'oung  from  vicious  surroundings.  But,  inas- 
much as  the  infant's  own  assent  is  now  made  essential  to  such 
instruments,  so  far  as  binding  him  beyond  the  age  of  discre- 
tion is  concerned ;  inasmuch  as  courts  do  not  hesitate  to  dis- 
regard them,  if  at  all  inequitable,  or  even  perhaps  if  diawn 
up  not  in  strict  conformity  to  statute ;  while,  according  to 
our  policy,  the  child's  freedom  to  dispose  of  his  own  time  in 
general  when  left  to  earn  his  living,  is  very  favorably  regard- 
ed;  it  must  be  said  that  apprenticeship  by  indenture  is  now 
thought  less  desirable  than  it  was  formerly.  Public  authori- 
ties may  resort  to  it  with  advantage  for  securing  good  homes 
to  the  homeless ;  parents  not  equall}^  so  ;  the  poor,  however, 
may  often  thus  secure  a  trade  education  for  their  children 
without  cost  to  themselves.  There  can  certainly  be  nothing 
unreasonable  in  permitting  one  of  suitable  discretion  to  make 
any  fair  contract  of  service,  whether  verbal  or  in  writing,  and 
the  advantages  may  often  constitute  an  adequate  compensa- 
tion for  his  labor.    If  he  be  very  discreet  he  will  not,  however, 

1  1  Bl.  Com.  426,  notes  by  Chitty  74  N.  C.  210.  Incorporated  institu- 
and  otliers.  As  to  the  Mississippi  rule  tions,  like  a  juvenile  asylum,  it  is  held, 
where  a  chancery  court  binds  out,  see  may  thus  be  authorized  by  a  Icgisla- 
Howry  i'.  Callowey,  48  Miss.  587.  ture.      People   v.  Juvenile  Asylum,  2 

2  See  2  Kent  Com.  262,  possm,  12th  Thorap.  &  C.  475.  Overseers  of  poor, 
ed.,  and  n.  Jurisdiction  for  binding  commissionersof  charities,  &c.,  have  au- 
out  in  this  country  is  given  in  many  thority  in  some  States.  People  ;?.  Weis- 
States  to  the  judge  of  probate.  Owen  senbach,  GON.  Y.385;  Glidden  i'.  Unity, 
V.  State,  48  Ala.  328 ;  Spears  v.  Snell,  10  Fost.  104. 

652 


CHAP.  I.] 


NATUKE   OF   THE   RELATION. 


§457 


make  a  contract  to  last  without  possible  modification  for  any- 
great  length  of  time.i 


1  Tliere  are  many  English  and  Amer- 
ican decisions  as  to  the  mutual  rights 
and  duties  of  master  and  apprentice, 
most  of  wiiicli  are  of  local  or  limited 
application.  Tlie  English  cases  will 
be  found  in  Macdonald  Handybook, 
76,  216.  Prospective  damages  cannot 
be  recovered  by  the  master  where  the 
apprentice  unlawfully  quits  tlie  service. 
Lewis  V.  Peacliey,  1  H  &  C.  518.  To 
make  the  master  liable  on  his  cove- 
nant to  teach  a  trade,  it  must  appear 
that  the  apprentice  was  ready  and  wil- 
ling to  be  taught.  Raymond  v.  Minton, 
L.  11.  1  E.x.  244.  Such  indentures  are 
strictly  construed  and  must  be  exe- 
cuted according  to  statute.  St.  Nich- 
olas )'.  St.  Bodoiph,  12  C.  B.  N.  s.  645. 
Questions  relating  to  tlie  conviction  of 
apprentices  or  workmen  for  misconduct 
constantly  arise  under  tlie  English  stat- 
utes ;  also  as  to  the  parish  settlement 
of  pauper  apprentices.  Macdonald, 
76  ;  ib.  218.  See  Boast  v.  Firth,  L.  R. 
4  C.  P.  1,  as  to  actions  for  breach  of 
indenture  of  apprenticeship.  It  is 
doubtful  whetlier  courts  of  equity  in 
England  would  cancel  indentures  of 
apprenticesliip  except  for  fraud.  Webb 
V.  England,  29  Beav.  44.  The  master 
has  his  remedies  against  tliird  persons 
for  enticement,  on  tlie  principles  usu- 
ally applicable  to  servants.  Cox  v. 
Muncey,  6  C.  B.  n.  s.  375.  And  see 
Royce  v.  Charlton,  8  Q.  B.  D.  1. 

In  tills  countrj-  it  would  appear  to 
be  the  rule  tiiat  contracts  of  appren- 
ticeship, not  executed  in  strict  accord- 
ance with  statute,  are  invalid;  or, 
rather,  are  voidable  by  the  parties  con- 
cerned. M.ilthy  V.  Harwnod,  12  Barb. 
473;  Bolton  i\  Miller,  6  Ind.  262;  Bal- 
lenger  v.  McLain,  54  Ga.  lof).  But  see 
Brewer  v.  Harris,  5  Gratt.  285.  And 
to  the  validity  of  tlie  indentures  the 
judge's  assent  may  be  necessary.  Hun- 
sucker  V.  Elmore,  54  Ind.  209.  Yet 
the  relation  of  master  and  servant  may 
be  inferred,  notwithstanding,  from  the 
acts  and  conduct  of  the  parties.     Malt- 


by  V.  Harwood,  supra ;  Page  v.  Marsh,  36 
N.  H.  305.  In  many  instances,  the 
courts  exercise  a  supervisory  influence ; 
and  they  will  insist  upon  the  provisions 
being  reasonable  ;  in  some  cases,  re- 
quiring the  insertion  of  fair  covenants 
on  tlie  master's  part,  sucli  as  instruc- 
tion of  the  apprentice  in  some  particu- 
lar trade;  and  they  will  even  cancel 
indentures  which  are  unsuitable  in 
terms  or  were  fraudulently  procured. 
Owens  V.  Chaplain,  •']  Jones,  323  ;  Finch 
V.  Gore,  2  Swan,  326;  Bakers  v.  Win- 
frey, 15  B.  Monr.  499;  Lammoth  v. 
Maulsby,  8  Md.  5 ;  Bell  i:  Herrington, 
3  Jones,  320;  Hatcher  «.  Cutts,  42  Ga. 
616;  Mitchell  v.  McElvin,  45  Ga.  4-58. 
Both  in  this  country  and  in  England, 
the  apprentice,  on  reaching  full  age, 
may  abandon  the  contract ;  though  the 
rule  of  avoidance  is  not  expressed  with 
uniformity.  Drew  o.  Peckwell,  1  E.  D. 
Smith,  408;  Walker  v.  Chambers,  5 
Harring.  311;  Forsyth  v.  Hastings,  27 
Vt.  646 ;  Wray  v.  West,  15  L.  T.  n.  s. 
180,  Q.  B.  It  is  held  that  overseers  of 
the  poor,  in  binding  out  paupers  as  ap- 
prentices, act  as  public  officers  and  not 
as  the  agents  of  their  towns.  Glidden 
V.  Unity,  10  Post.  104.  And  see  Bard- 
well  V.  Purrington,  107  ]\Ia?s.  419.  The 
government,  by  accepting  tiie  appren- 
tice into  military  service,  confers  upon 
him  the  right  to  his  own  pay  and 
bounty.  Johnson  r.  Dod<l,  56  N.  Y. 
76.  The  master's  right  of  custody  as 
against  an  unwilling  apprentice,  who 
wishes  to  return  to  his  parents,  appears 
in  this  country  to  be  quite  doubtful, 
though  the  indentures  be  well  drawn ; 
the  wishes  of  the  child  being  appar- 
ently regarded  as  paramount.  People 
V.  I'illow,  1  Sandf.  Sup.  672.  In  sev- 
eral instances,  where  imperfect  inden- 
tures liad  been  terminated,  the  master 
was  held  not  liable  for  the  apprentice's 
services  on  a  quantum  meruit,  their  origi- 
nal engagement  contemplating  nothing 
of  the  kind.  Maltby  v.  Ilarwood,  12 
Barb.  473;  Page  v.  Marsh,  36  N.  IL 
653 


458 


THE   DOMESTIC    RELATIONS. 


[part  VX 


§  458,  Strict  Relation  of  Master  and  Servant:  Contract  of 
Hiring.  —  Third.  To  come,  then,  to  the  strictly  legal  relation 
of  master  and  servant.  This  contract  arises  purely  upon  the 
hiring.    If  the  hiring  be  general,  without  any  particular  time 


305;  Hudson  v.  Worden,  39  Vt.  382. 
The  assignment  of  apprenticeship  is 
in  some  States  pronounced  void,  tiie 
trust  being  personal ;  aud  in  general  it 
is  voidable  by  the  infant  himself.  Tuck- 
er V.  Magee,  18  Ala.  99;  Huffman  v. 
Rout,  2  Met.  (Ky.)  50;  Allison  v.  Nor- 
wood, Busbee,  -114;  Commonwealth  v. 
Van  Lear,  1  S.  &  R.  248;  Phelps  v. 
Culver,  6  Vt.  430.  Yet  the  infant's 
renewed  assent  may  give  force  to  it. 
See  Williams  v  Fmch,  2  Barb.  208; 
Nickerson  i-.  Howard,  19  Johns.  113. 
In  some  States,  and  perhaps  in  all,  in- 
fancy is  a  good  plea  to  action  of  cove- 
nant on  such  indentures.  McNight  v. 
Hogg,  1  Const.  117.  See  Brock  v.  Park- 
er, 5  Ind.  o38.  As  to  the  construction 
and  method  of  execution  of  such  inden- 
tures, see  also  Wiiitmore  v.  Whitcomb, 
43  Me.  458 ;  McPeck  v.  Moore,  51  Vt. 
209;  Van  Dorn  v.  Young,  13  Barb. 
286;  Glidden  v.  Unity,  10  Post.  104; 
Wright  V.  Brown,  5  Md.  37.  A  child 
held  under  invalid  indentures  of  ap- 
prenticeship may  be  discharged  upon 
habeas  corpus.  Cannon  v.  Stuart,  3 
Houst.  223;  Commonwealth  v.  Atkin- 
son, 8  Phil.  375.  For  enticement  of 
an  apprentice,  or  other  injury  inter- 
fering with  tlie  service,  the  master  has 
the  usual  remedies  against  third  per- 
sons ;  and  sometimes  the  party  enticing 
maj'  be  indicted.  Holliday  v.  Gamble, 
18  III.  35  ;  Bardwell  v.  Purrington,  107 
Mass.  419;  Ames  v.  Union  R.,  117 
Mass.  541  ;  Doane  v.  Covel,  56  Me. 
527 ;  Hooks  v.  Perkins,  Busbee,  21. 
Though  this  seems  to  be  because  of 
the  relation  of  servant  rather  than 
apprentice.  See  c.  4,  infra.  And  a 
father  who  executes  such  indenture  is 
bound  to  exercise  his  paternal  author- 
ity to  aid  in  its  enforcement.  Van 
Dorn  V.  Young,  13  Barb.  286.  A  set- 
tlement between  master  and  appren- 

654 


tice,  made  soon  after  the  expiration. of 
the  term,  will  be  viewed  with  great 
jealousy.  McGunigal  v.  Mong,  5  Barr, 
269.  As  a  rule,  except  in  cases  of 
paupers,  both  the  English  and  Ameri- 
can statutes  require  that  the  infant 
shall  execute  the  deed  if  fourteen,  as 
well  as  his  parents,  and  the  policy 
of  the  law  is  against  binding  out  one 
of  discreet  years,  unless  he  is  made  a 
party  to  the  instrument.  See  2  Kent 
Com.  12th  ed.  2G3,  264,  and  notes; 
Stats.  Vermont,  New  York.  Maine,  &c. 
The  infant's  informal  assent  will  not 
bind  him.  Commonwealth  v.  Moore, 
1  Ashm.  123 ;  Squire  v.  Whipple,  1  Vt. 
69.  But  see  Fisher  v.  Lunger,  4  Vroom, 
100.  It  must  be  distinctly  expressed 
in  the  indenture.  Harper  i'.  Gilbert, 
5  Cush.  417.  And  where  the  court 
binds  out,  prudence  requires  that  the 
infant  should  be  present.  Mitchell  v. 
Mitchell,  67  N.  C.  307.  The  mother's 
consent,  too,  as  parent,  where  the  fa- 
ther is  dead,  or  incapacitated  from  giv- 
ing consent,  is  favored  in  many  States. 
People  V.  Gates,  43  N.  Y.  40.  And 
under  our  statutes  a  child  may  fre- 
quently be  apprenticed  to  Shakers,  as 
well  as  to  any  other  master.  People  v. 
Gates,  43  N.  Y.  40;  Curtis  v.  Curtis, 
5  Gray,  535  An  apprentice's  resi- 
dence during  minority  would  appear 
to  be  that  of  his  master.  Maddox  v. 
State,  32  Ind.  111.  A  minor  who  per- 
forms service  under  invalid  articles 
may  recover  therefor.  Kerwin  r.  My- 
ers, 71  Ind.  359.  For  his  master's  breach 
of  indentures  the  apprentice  may  sue 
on  reaching  full  age.  Cann  v.  Wil- 
liams, 3  Houst.  78.  As  to  dismissal  of 
an  apprentice  for  misbehavior,  &c , 
under  the  terms  of  the  contract,  see 
Westwick  v.  Theodor,  L.  R.  10  Q.  B. 
D.  24. 


CHAP.  I.]  NATTTRE   OF  THE   RELATION.  §  458 

limited,  the  old  law  construes  it  into  a  year's  hiring.^  But  the 
equity  of  this  rule  extended  only  to  such  emplojment  as  the 
change  of  seasons  affected  ;  as  where  the  servant  lived  with 
his  master  or  worked  at  agriculture.  By  custom,  moreover, 
such  contracts  have  become  determinable  in  the  case  of  do- 
mestic servants,  upon  a  month's  notice,  or,  what  is  an  equiv- 
alent, payment  of  a  month's  wages.^  Laborers  are  hired  fre- 
quently by  the  day,  and  to  hire  by  the  week  is  not  unusual.^ 
Yet,  as  to  hiring  in  general,  the  rule  still  is  that  if  master  and 
servant  engage  without  mentioning  the  time  nor  the  frequenc}'' 
of  payment,  it  is  a  general  hiring,  and  in  point  of  law  a  hiring 
for  a  year,*  a  rule  however,  founded  in  English  rather  than 
American  usage.  Custom  modifies  this  principle,  and  the  date 
and  frequency  of  periodical  payments  are  material  circum- 
stances in  each  case.  The  principle  of  yearly  hiring  is  ap- 
plicable to  all  contracts  of  hiring  and  service,  whether  written 
or  unwritten,  whether  express  or  implied,  and  whatever  the 
nature  of  the  service;  its  modifications  arise  whenever  the 
contract  contains  stipulations  inconsistent  with  its  applica- 
tion, or  where,  from  some  well-known  custom  upon  the  sub- 
ject, the  parties  may  be  considered  to  have  contracted  with 
sole  reference  to  such  custom.^  In  this  country,  at  least,  if  a 
contract  for  hiring  is  at  so  much  per  month,  it  will  readily  be 
presumed  that  the  hiring  was  by  the  month,  even  if  nothing 
was  said  about  the  term  of  service.^  But  the  periodical  pay- 
ment is  not  conclusive  as  to  the  periodical  hiring  where  the 
evidence  shows  an  arrangement  for  a  different  period ;  there 
is  no  such  precise  rule  here  as  in  the  relation  of  landlord  and 
tenantJ  In  this  country  custom  bears  very  strongly  upon  the 
interpretation  of  all  contracts  of  service.^ 

The  rule  as  to  hiring  does  not  apply  to  cases  where  there 
has  been  a  service,  but  no  contract  of  hiring  and  no  circum- 

1  Co.  Litt.  42 ;  1  Bl.  Com.  425.  v.  Worfield,  5  T.  R.  506 ;    Baxter  v. 

2  Nowlan  v.  Ablctt,  2  Cr.,  M.  &  R.     Nurse,  1  Car    &  K.  10 ;  Hathaway  v. 
54;  Fawcett  v.  Cash,  5  B.  &  Ad.  904;    Bennett,  10  N.  Y.  108. 

Fevvings  v.  Tisdal,  1  Exch.  205.  6  Beacli  v.  MuUin,  5  Vroom,  343. 

3  R.  V.  Pucklecliurch,  5  East,  382.  7  Tatterson  r.  Suffolk  Man.  Co.,  106 
*  Fawcett  v.  Cash,  5  B.  &  Ad.  904.     Mass.  56;  Trentiss  v.  Ledyard,  28  "Wis. 

See  Lilley  v.  Elwin,  11  Q.  B.  742.  131. 

5  Smith  Mast.  &  Serv.  41,  42;  Rex         »  Lyon  v.  George,  44  Md.  295. 

656 


§  458  THE  DOMESTIC   RELATIONS.  [PART  VI. 

stances  from  which  a  contract  can  be  inferred.  And  a  contract 
of  hiring  cannot  be  presumed  where  the  circumstances  tend 
to  rebut  such  a  presumption ;  as  where  paupers  have  been 
taken  to  live  with  their  reLatives  out  of  charity,^  or  where  the 
agreement  was  for  cohabitation  and  not  for  service.^ 

We  find  at  the  outset,  then,  a  distinction  made  in  practice 
between  servants,  menial  or  domestic,  and  other  servants ; 
which  distinction  is  founded  upon  a  custom  of  dissolving  the 
relation,  not  at  the  end  of  a  year,  but  at  any  time  upon  giving 
the  servant  a  month's  wages.  An  English  writer  says  that  no 
general  rule  can  be  laid  down  as  to  who  do  and  who  do  not 
come  within  the  categor}^  of  menial  servants  ;  every  case  must 
stand  upon  its  own  circumstances.^  But  in  a  late  case,  where 
the  subject  was  fully  discussed,  the  disposition  manifested  was 
to  extend  the  word  "  domestic  "  bej'ond  the  signification 
"menial;"  and  a  family  huntsman  was  brought  within  the 
above  rule.^  The  reason  is  apparently  that  contracts  for  ser- 
vices which  bring  the  parties  into  such  close  proximity  and 
frequency  of  intercourse  that  they  are  valuable  only  when 
mutually  agreeable  and  otherwise  intolerably  annoj-ing,  should 
be  readily  terminated  at  the  option  of  either  party. ^  A  gover- 
ness engaged  at  a  yearly  salary,  though  residing  in  the  house, 

1  Rex  V.  Sow,  1  B.  &  Aid.  178;  not  entire  control,  and  the  servant  is 
Smith  Mast.  &  Serv.  42.  at  liberty,  wlien  not  engaged   for  his 

2  Rex  V.  Northwingfield,  1  B.  &  Ad.  master,  to  work  for  others  ;  though  this 
912.  Where  either  party  is  at  liberty  rule  is  to  be  cautiously  applied.  Rex 
to  determine  the  service  at  any  time  v.  Killingholme,  10  B.  &  C.  802.  See 
without  notice,  the  hiring  cannot  be  Reg.  v.  Raveustonedale,  12  Ad.  &  El. 
considered  a  yearly  contract.  Smith  73.  The  same  principle  holds  good 
Mast.  &  Serv.  43,  44,  and  cases  cited  ;  where  the  hours  of  working  are  lim- 
Rex  I'.  Great  Bowden,  9  B.  &  C.  249,  ited  by  contract.  Reg.  v.  Preston,  4 
and  cases  cited.      Or  if  the  hiring  be  Q.  B.  697. 

expressly  for  less  than  aj'ear ;  although  ^  Smith  Mast.  &  Serv.  2d  ed.  52. 

done   purposely    to  avoid    the    conse-  *  NicoU  v.  Greaves,  17  C.  B.  x.  s.  27. 

queni'es    of  a  3"early  hiring.     Rex   v.  The  dictionaries  furnish  little  aid  on 

Standcm  Massey,  10  East,  576;  2  Salk.  this  point. 

535;    Rex   r.   Coggeshall,   G   M.  &  S.         *  Per  Erie,  C.  J.,  ih.     See  further, 

264.      Or  if   the  agreement  be  to  do  Nowlan  v.  Ablett,  2   Cr.  M.  &  R.  64 

work  by  the   piece   or  job.      Rex   v.  Johnson  v.  Blenkensopp,   5  Jur.  807 

Woodhurst,  1    B.  &  Aid.  325.      Or  if  Crocker  v.  Moiyneux,  3  Car.  &  P.  470 

certain  portions  of  the  year  are  spe-  Ex  parte   Walter,  L.   R.   15  Eq.  412 

cially  excepted.     Rex  v.  St.  Helen's,  4  Stone  v.  Western  Transportation  Co., 

B.  &  Ad.  726.     Or  if  the  master  has  38  N.  Y.  240. 

656 


CHAP,  I.]       NATURE  OF  THE  RELATION.  §  460 

is,  however,  held  not  to  be  within  the  class  of  menial  or  do- 
mestic servants:  regard  being  paid  by  the  court  to  the  dignity 
of  her  position. 1  But  the  head  gardener  is,  though  living  not 
in  the  master's  house,  but  in  his  own  cottage  in  tlie  domain.^ 

§  459.  Contract  of  Hiring  affected  by  Statute  of  Frauds.  —  At 
the  common  law,  a  servant  might  be  hired  either  by  deed  or 
by  a  parol  contract,  but  when  hired  or  retained  by  deed  he 
could  only  be  discharged  by  an  equally  formal  instrument ; 
when  hired  by  parol  he  might  be  discharged  by  parol.^  But 
since  the  enactment  of  the  statute  of  frauds,  contracts  of  hir- 
ing must  be  frequently  expressed  in  writing,  in  order  to  be 
legally  effectual.  Under  this  statute,  the  contract  of  service 
may  be  verbally  made  and  proved  if  it  is  capable  of  perform- 
ance within  a  year;  otherwise,  it  must  be  in  writing.  Hence, 
a  verbal  agreement  to  hire  for  a  year,  commencing  at  a  future 
day,  is  insufficient.*  In  short,  a  contract  for  personal  service 
which  is  not  to  go  into  operation  for  a  year,  or  is  to  continue 
in  force  and  hold  the  parties  together  for  a  longer  period, 
must  be  in  writing.^  Yet  it  seems  that  a  contract  made  on  a 
certain  day  to  serve  for  a  year  from  the  following  day  is  not 
within  the  statute  of  frauds.^ 

§  460.  Contract  of  Hiring ;  Tvhen  in  Restraint  of  Trade  or  Op- 
pressive as  to  Length  of  Term.  —  Restraint  of  trade  sometimes 
enters  as  an  element  into  agreements  between  master  and  ser- 
vant. If  professional  men,  manufacturers,  or  tradesmen  take 
clerks,  apprentices,  or  workmen  into  their  employ,  and  re- 
quire them  to  agree  that  tliey  will  not  carry  on  a  like  profes- 
sion, manufacture,  or  trade  within  certain  limits,  —  this  for 
the  purpose  of  securing  themselves  against  competition,  —  the 
contract,  being  in  restraint  of  trade,  is  illegal  and  void.^    The 

1  Tod*  V.  Kerrich,  8  Exch.  151 ;  14  *  Bracegirdle  v.  Heakl,  1  B.  &  Aid. 

E.  L.  &  Eq.  433.  722;  Giraiul  v.  Richmond,  2  C.  B.  835. 

2No\vlan  v.  Ablett,  2  Cr.  M.  &  R.  &  See  1  Smith  Lead.  Cas.  4-32,  and 

54.     Where  one  hires  a  man  and  liis  American  notes,  where  this  subject  is 

wife  to  "  live  in  his  family  "  and  "  work  thoroughly  examined, 

for  him,"  this  is  a  contract  for  their  6  Cawthorn  u.  Cordrey,  32  L.  J.  n.  s. 

per»onnl  services.     Jennings  v.  Lyons,  C.  P.  152. 

39  Wis.  553.  7  Com.  Dig.  "  Trade,"  D  3  ;  Mitchel 

3  Smith    Mast.   &   Serv.   16;    Dalt.  ?'.  Reynolds,  1  P.  Wms.  181;    8.  c.  1 

Just.  c.  58.  Smith  Lead.  Cas.  508,  Am.  ed.  notes ; 

42  657 


§  460  THE   DOMESTIC   RELATIONS.  [PART   VI. 

general  rule  is  that,  in  order  to  render  such  a  contract  valid 
at  law,  the  restraint  must  be  (1),  partial  only  ;  ('2),  upon 
an  adequate,  or,  as  the  law  now  seems  to  stand,  not  a  mere 
colorable  restriction ;  (3),  reasonable  and  not  oppressive.^ 
Even  then  equity  would  be  loth  to  enforce  it  specifically  if  it 
be  at  all  hard  or  even  complex  j^  though  in  many  cases  it  will 
do  so.^ 

To  the  same  general  head  as  contracts  in  restraint  of  trade 
belong  contracts  by  which  the  services  of  individuals  are 
secured  for  a  specified  time,  or  for  life,  to  a  particular  master. 
Contracts  for  life  are  not  illegal  at  common  law  ;  but  they 
are  ver}''  strongly  objectionable  ;  and,  in  this  country,  it  is 
doubtful  whether  they  would  ever  be  enforced,  so  contrary 
are  they  to  the  spirit  of  our  institutions.^  Yet  some  writers 
commend  such  contracts  ;  and  in  England  agreements  where- 
by, in  substance,  workmen  engaged  to  serve,  for  a  term  of 
seven  years,  certain  persons  or  their  firm,  or  again,  at  a  cer- 
tain scale  of  wages  subject  to  determine  in  the  event  of  sick- 
ness or  incapacity  of  the  men  or  cessation  of  business  by  the 
employer,  were  considered  valid  and  uuol)jectionable.^ 

But,  in  Massachusetts,  a  contract  made  by  an  adult  with  a 
citizen  of  the  United  States  to  serve  him,  "his  executors  and 
assigns,"  for  five  j'ears,  without  fixing  the  nature  and  extent 
of  the  services,  or  the  place  of  their  performance,  in  consider- 
ation of  ten  dollars,  and  of  being  fed,  clothed,  and  lodged, 
and  at  the  expiration  of  the  contract  being  paid  "the  custom- 
ary freedom  dues,"  is  pronounced  illegal  and  void,  even  if 
valid  where  made.^  "  Such  a  contract,  it  is  scarcely  necessary 
to  say,  is  against  the  policy  of  our  institutions  and  laws,"  was 
the'  language  of  the  court. 

Lange  v.  Work,  2  Ohio,  n.  s.  520 ;  Law-  653 ;  Mumford  v.  Getlnng,  7  C.  B.  n.  a. 

rence  v.  Kidder,  10  Barb.  641  ;  Gilman  305. 

V.  Dwiglit,   13  Graj',  356;    Duffey  v.         *  See  Wallis  w.  Day,  2  M.  &  W.  277  ; 

Sliockev,  11  Ind.  71.  1  Smith  Lead.  Cas.  521. 

1  1  Smith  Lead.  Cas.  521.  ^  pilkington  v.  Scott,  15  M.  &  W. 

2  Kemble  v.  Kean,  6  Sim.  335.  657  ;  Hartley  v.  Cummings,  5  C.  B.  247. 
8  lb. ;    Benwell    v.    Inns,    24    Beav.  See  1  Smith  Lead.  Cas.  521. 

307.     And  see  Smith  Mast.  &  Serv.  51  «  Parsons   v.    Trask.,  7    Gray,   473. 

et  seq  ;    Mallan  v.  May,  11  M.  &  W.     And  see  Mary  Clark's  Case,  1  Blackf. 

(Ind.)  122. 

658 


CHAP.  I.]  NATURE   OF   THE   RELATION.  §  461 

§  461.  Creating  the  Relation  of  Service ;  Quasi  Servants.  — 
As  a  general  rule,  every  person  of  full  age,  free  from  all  other 
incompatible  engagements,  may  become  either  a  master  or  a 
servant ;  and  the  service  need  not  be  performed  under  a 
legally  binding  contract,  for  the  service  may  be  constituted 
de.  facto}  The  usual  law  of  contracts  applies  to  all  who  enter 
the  relation.  Thus  an  offer  to  employ  anotlier  does  not  bind 
the  person  making  it  until  he  is  given  to  understand  that  it  is 
accepted  ;  and  there  must  appear,  as  to  adults  at  least,  a  vol- 
untary coincidence  in  a  common  understanding,  whether  by 
writings  or  parol.^  And  arrangements  for  remunerating  a 
servant  by  a  portion  of  the  profits  may,  under  some  cir- 
cumstances, constitute  him  a  partner  rather  than  a  mere 
servant.^ 

The  relation  of  master  and  servant  is  created,  so  far  as  may 
affect  the  rights  of  third  persons,  when  one  suffers  another  to 
proceed  in  a  service  in  which  the  latter  engaged  only  as  a 
volunteer.*  Yet  one  cannot  by  merely  rendering  services 
voluntarily,  without  request  or  assent,  compel  the  other  to 
become  his  debtor.^ 

A  municipal  or  other  corporation  may  sustain  the  quasi 
relation  of  master  and  servant  with  those  in  its  employ,  so 
as  to  be  liable  for  the  negligence  of  the  person  employed.^ 
Such  a  relation  between  railroad  companies  and  those  in  their 
employ  is  constantly  recognized  in  the  courts.  The  two 
terms  "master  and  servant"  and  "principal  and  agent,"  are, 
in  fact,  frequently  interchanged  as  though  identical  in  mean- 
ing, and,  indeed,  one  is  usually  quite  as  inexact  as  the  other." 

1  Smith  Mast.  &,  Serv.  1.  or  servant;  independent  contracts,- how- 

2  McDonald  v.  Boeing,  43  Mich.  394.     ever,  not  falling  within  the  rule.     Cin- 
8  Smith  Mast.  &  Serv.  29.  cinnati  v.  Stone,  5  Ohio    St.  38.     But 

4  Hill  V.  Morey,  26  Vt.  178.  in  Illinois,  contractors  huilding  a  rail- 

5  Webb  L'.  Cole,  20  N.  H.  490;  Alton  road  appear  to  be  treated  as  servants 
V.  Mulledy,  21  111.  76.  of  the  company   in  a  more  extended 

**  See  Scott  v.  Mayor  of  Manchester,  sense.     Chicago,  &c.  R.  R.  Co.  v.  Mc- 

37  E.  L.  &Eq.  495.  Carthy,  20  111.  385.      There  is  much 

7  In  Ohio  the  distinguishing  feature  difficulty  in  applying  the  rule  as  to 
of  the  relation  of  service  has  been  said  railroad  contractors.  See  1  Redf.  Rail- 
to  be  that  the  employer  keeps  control  ways,  505.  In  Connecticut,  it  is  said 
over  the  mode  and  manner  of  work,  that  the  manner  of  paying  for  work 
and  this  applies  to  contractor,  agent,  constitutes  no  criterion,  nor  the  exist- 

659 


§  4G2  THE   DOMESTIC   T.ELATIONS.  [PAET   VI. 

Where  one  is  neither  employed,  paid,  nor  controlled  by  an- 
other, he  is  not  his  servant  in  tl.e  legal  sense.^  We  have 
seen  that  adult  children  remaining  in  a  family  maybe  de  facto 
servants  so  as  to  lay  tlie  foundati(ni  of  certain  suits. ^ 

§  462.  Ho"w  Contract  for  Service  is  terminated ;  Causes  of 
Discharge,  &c. —  We  are  now  to  inquire  in  what  manner  tlie 
relation  of  master  and  servant  may  be  terminated.  The 
causes  which  justify  discharge  by  the  master  are  various,  and 
the  rule  depends  somewhat  upon  the  nature  of  the  particular 
employment  in  question.  But  most  decisions  are  reducible 
to  three  leading  classes :  firsts  wilful  disobedience  of  a  lawful 
order;  second,  gross  moral  misconduct;  third,  habitual  negli- 
gence or  kindred  fault  in  the  employment.^ 

An  instance  of  the  first  class  came  before  Lord  Ellen- 
borough,  where  a  farmer's  servant  was  ordered  to  go  with 
the  horses  a  mile  off  just  as  dinner  was  ready,  and  he  said  he 
would  not  go  until  he  had  had  his  dinner.*  And  another, 
more  recent,  is  where  a  farm-servant  refused  to  work  during 
harvest  without  beer.^  In  a  carefully-considered  English 
case,  the  court  went  even  so  far  as  to  justify  dismissal  of 
a  housemaid  who  persisted  in  leaving  the  house  without  per- 
mission, to  visit  a  sick  and  dying  mother.^  In  these  cases, 
and  especially  the  last,  the  authority  of  the  master  is  very 

ence  of  actual  present  control  and  su-  trols  the  persons  emplojefl,  directs  the 

pervision  on  the  part  of  tlie  employer;  execution  of  the  work,  and  so  on.    See 

but  tliat  these  are  both  circumstances  }iost,  c.  4;    Robinson  v.  Webb,  11  Bush, 

to  be  weighed  in  each  case.     Corl)ln  v.  4(i4 ;   Conlin  v.  Charlestown,  15  Rich. 

American  Mills,  27  Conn.  274.-  201 ;  Coomes  r.  Houghton,  102  ]Mas3. 

1  McGuire  v.  Grant,  1    Uutcli    356.  211;    Railroad   v.   Hanning,   15   Wall. 

See  Water -Co.  v.  Ware,  16  Wall.  566.  649;  Water  Co.  i'.  Ware,  16  Wall.  566; 

One  who  orally  contracts  to  serve  as  a  1  Redf.  Railw.  .3d.  ed.  -506-500;  Ballou 

farm  laborer,  comes  within  the  relation  v.  Farnum,  9  Allen,  27  ;  Meara  i'.  Hol- 

of  master  and  servant.  Daniel  f.  Swear-  brook,   20   Ohio    St.    137;    Palmer   i'. 

engen,  0  Rich.  297.  Portsmouth,  43  N.  H.  265;  Harrison  i\ 

-  Whether  the  relation    of    master  Collins,  86    Penn.  St.  1-53.      See  also, 

and    servant    actually   existed,    is  the  as  to  employment  in  a  colliery,  Rourke 

fundamental  inquiry  in  suits  where  a  v.  Colliery  Co.,  2  C.  P.  D.  205. 
plaintiff     seeks    to   make   one   person  ^  Smith  Mast.  &  Serv.  70;    2  Kent 

responsible  for  the  negligence  of  an-  Com.  259. 

other  ;     the    only    true    basis    of    re-  *  Spain  v.  Arnott,  2  Stark.  256. 

sponsibility   in   such   cases   being    the  ^  Lilley  v.  Elwin,  11  Q.  B.  742. 

existence  of   the  master   and   servant  ^  Turner  v.  Mason,  14  M.  &  W.  112. 

relation,  so  that  one  selects  and  con-  And  see  Smith  Mast.  &  Serv.  71. 

660 


CHAP.  I.]  NATURE   OF   THE   RELATION.  §  462 

strongly  upheld ;  more  so,  perhaps,  than  American  policy 
would  concede.  Where  the  misconduct  is  slight,  and  a  first 
offence,  where  the  reasons  for  disobedience  are  extreme,  and 
where  the  servant's  general  conduct  is  exemplary,  this,  it 
seems,  ought  to  go  strongly  in  his  own  justification ;  for  the 
mutuality  of  contracts  is  always  properly  considered.  An 
obstinate  refusal  to  do  an  unlawful  act  is  clearly  no  ground 
for  dismissal.^  But  for  insolence  and  wilful  disobedience  of 
orders  a  servant  may  generally  be  dismissed.^ 

Instances  of  the  second  class  are  not  uncommon.  Immo- 
rality is  sufficient  cause  for  dismissal^;  even  the  pregnancy 
of  a  maid-servant,  according  to  Lord  Mansfield.^  Embezzle- 
ment is  a  good  ground,  though  the  sum  embezzled  be  less 
than  the  arrears  of  wages.^  The  same  is  true  of  robbery.^ 
And  of  indecent  and  immoral  behavior,  especially  if  exhibited 
towards  others  in  the  master's  employ,  or  otherwise  to  his  im- 
mediate detriment.'''  Habitual  drunkenness  is  doubtless  a  good 
ground,  if  it  serioush"  interferes  with  the  due  performance  of 
the  particular  service  and  the  master's  interests.^  Acts  and 
conduct  which  pointedly  indicate  fraudulent  misbehavior 
toward  the  master  may,  and  should,  justify  prompt  dismissal.^ 

The  third  class  furnishes  many  examples  ;  and  yet  the  rule 
here  is  to  be  laid  down  with  much  caution,  for  a  practical  ap- 
plication is  difficult.  Detriment  to  a  master's  interests  may 
occur  through  the  servant's  fault  outside  of  the  strict  classi- 
fication here  referred  to.  There  are  some  English  cases 
where  conduct  which  might  ordinarily  seem  justifiable  on  a 
servant's  part  has  been  punished  by  dismissal,  the  court  car- 
rying out  the  then  prevailing  policy  against  teaching  the 

1  See  Jacquot  v.  Bourra,  7  Dowl.  8  Gonsolls  v.  Gearhart,  31  Mo.  585 ; 
348.                                                                See  Lord  Denman,  in  Wise  v.  Wilson, 

2  Beach  v.  Mullin,  5  Vroom,  34.S.  1  Car.  &  K.  662. 

8  Atkin  V.  Acton,  4  Car.  &  P.  208.  9  See  Horton  v.  McMurtry,  5  HixrL 

*  Cald.  11 ;  ib.  57.  &  Nor.  667 ;   Singer  v.  McCormick,  4 

5  Brown  v.  Croft,  6  Car.  &  P.  16,  n. ;  W.  &  S.  266.  Slandering  the  master 
Spotswood  V.  Barrow,  5  Exch.  110.  to  others,  and  spitefully  suing  him  on 

6  Libhart  v.  Wood,  1  W.  &  S.  265;  groundless  charges,  is  good  cause  for 
Trotman  i>.  Dunn,  4  Camp.  211 ;  Smith  dismissal.  Brink  u.  Fay,  7  Daly,  562. 
Mast.  &  Serv.  72.  And   see   McCormick  v.  Demary,  10 

7  Weaver  v.  Halsey,  1  111.  App.  558;  Neb.  515. 
Drayton  v.  Reid,  5  Daly,  442. 

661 


§  462  THE   DOMESTIC    RELATIONS.  [PAET   VI. 

secrets  of  trade  to  strangers  or  foreigners.^  So  have  many 
decisions  seemed  to  sustain  the  master,  where  the  servant 
hickecl  in  bhnd  devotion  to  his  selfish  interests,  or  asserted  a 
generous  independence  of  opinion  a  little  too  boldly .2  But 
at  the  present  day,  certainly  in  America,  more  might  be 
claimed  for  the  servant  and  less  for  the  master.  Yet  the 
legal  i^rinciple  is  correct  that  for  habitual  negligence  or  un- 
warranted aljsence,  or  for  such  conduct  as  prevents  a  mutual 
agreement  from  being  carried  out  to  the  reasonable  satisfac- 
tion of  the  employer,  the  person  employed  may  be  dismissed  ; 
nor  would  it  seem  to  matter  much  whether  it  be  through 
wantonness  or  palpable  inefficiency  amounting  to  a  breach  of 
implied  undertaking.^  A  servant  betraying  his  master's  con- 
fidence may,  it  seems,  be  discharged.*  But  the  relation  con- 
tinues though  the  master  obtains  a  commitment  of  the  servant 
to  prison.^  So,  where  absence  is  warrantable,  or  where  the 
absence  is  temporary  for  no  bad  purpose,  and  the  master  has 
suffered  no  serious  loss  thereby.^  Where  serious  danger, 
though  perhaps  not  actual  damage,  is  occasioned  to  the  mas- 
ter's business  by  his  servant's  conduct,  he  is  justified  in  dis- 
missing the  servant  on  that  account;  as  if  an  apothecary's 
assistant  should  frequently  employ  an  ignorant  shop-boj^  to 
make  up  prescriptions  to  save  himself  work.'^  Herein  the 
servant's  negligence  amounts  to  a  breach  of  his  implied  un- 
dertaking. 

Subject  to  what  has  already  been  said  concerning  contracts 
in  restraint  of  trade,  we  may  add  tliat  a  servant  may  lawfully 
be  discharged  on  the  ground  that  he  is  engaging  in  another 
business  in  competition  with  and  calculated  seriously  to  injure 
that  of  his  employer.     Here  the   cause  of  discharge  would 


1  Turner  v.  Robinson,  5  B.  &  Ad.         ^  j^gx  v.  Barton,  2  M.  &  S.  329. 
789.  «  Filleul  v.  Armstrong,  7  Ad.  &  El. 

'-^  See  Lacy  v.  Osbaldiston,  8  Car.  &  557. 
P.  80;  Ridsway  y.  Hungerford  Market  7  Wise  v.  Wilson,  1  Car.  &  K.  602. 

Co.,  .3  Ad.  &  El.  171;  Amor  v.  Fearon,  Though  here  tlie  relation  was  admitted 

9  Ad.  &  El.  548.  to  be   not  strictly   that  of  servant  or 

^  See  Callo  v.  Brouncker,  4  Car.  &  apprentice.      See  further,    Harover  v. 

P.  518,  cited  Smith  Mast.  &  Serv.  73.  Cornelius,  5  C  B.  n.  s.  230  ;   Stanton 

4  Beeston  v.  Collyer,  2  Car.  &  P.  609.  v.  Bell,  2  Hawks,  145. 

662 


CHAP.  I.]  NATUHE   OF   THE   EELATION.  §  464 

be  serious  detriment  to  the  master's  interests,  if  not  habitual 
negligence.^ 

§  463.  The  Same  Subject,  —  If  good  ground  of  discharge 
exists,  and  is  known  to  the  master  at  the  time  of  dismissal, 
it  is  sufficient  to  justify  the  discharge,  although  he  cliose  to 
allege  some  other  cause.^  But  it  would  seem  that  if  the 
master,  at  tlie  time  he  discharged  the  servant,  did  not  know 
of  any  act  of  misconduct  on  the  servant's  part  which  would 
justify  dismissal,  the  mere  existence  of  such  misconduct  would 
not  afterwards  avail  in  his  own  justification.^  Discharge  for 
a  certain  cause  should  be  reasonably  soon  after  knowledge 
of  the  cause  in  order  to  avail  the  employer.^  And  a  waiver 
of  the  right  to  discharge  a  servant  may  be  presumed  from 
circumstances.^ 

§464.  Termination  of  Service  by  Mutual  Consent,  &c.;  Special 
Terms.  —  A  contract  of  service,  like  all  other  contracts,  may 
be  dissolved  by  mutual  consent,  or  by  the  death  of  either 
party,  or  by  the  completion  of  the  term  of  service.''  The 
parties  may  make  special  terms,  as,  for  instance,  in  fixing  a 
certain  period  or  in  requiring  a  certain  previous  notice  to 
terminate  ;  and  such  terms,  even  if  more  favorable  to  one 
than  the  other,  must  be  mutually  respected^ 

^  Adams  Express  Co.  v.  Trego,  35  was  occasionally  intemperate  and  dis- 

Md.  47  ;  supra,  §  4G0.     It  is  insufficient  continued    service    for    short    periods 

excuse  to  tiie  servant  that  the  com-  would  not  prevent  his  recovering  the 

peting  business  was  conducted  by  him  stipulated  rate  for  the   time  actually 

without    neglecting   his  master's   con-  spent  in  such  service,  if  he  was  received 

cerns.     Dieringer  v.  Meyer,   42   Wis.  back  into  it,  and  continued  therein  with- 

311.  out  any  new  arrangement  made  or  any 

2  Smith  Mast.  &  Serv.  76,  and  cases  intimation  that  the  old  one  was  tcrmin- 
cited;  Baillie  v.  Kell,  4  Bing.  N.  C.038  ;  ated.  Prentiss  y.  Ledyard,  28  Wis.  131. 
Kidgway  r.  Hungerford  Market  Co.,  3  6  ggg  Thomas  v.  Williams,  1  Ad.  & 
Ad.  &  El.  171;  Mercer  y.  Whall,  5  Q.  B.  El.  685.  Contract  held  to  have  been 
447.  dissolved  by  mutual  con.sent  in  Stock- 

3  Cussons  V.  Skinner,  11  M.  &  W.  ley  v.  Goodwin,  78  111.  127.  Accepting 
161.  But  see  Spotswood  v.  Barrow,  5  one's  discharge  without  remonstrance 
Exch.  110.  does  not  conclude  this  point.     Dana  v. 

4  See  Williams  v.  Jeter,  64  Ga.  737  ;  Short,  81  Id.  468. 

Bast  V.  Byrne,  51  Wis.  531.  '  Green  v.  Wright,  1  C.  P.  D.  501 ; 

5  Tlius,  where  a  servant  was  to  Walsh  v.  Walley,  L.  K.  0  Q.  B.  867; 
receive  payment  at  a  specified  rate  if  Preston  v.  American  Linen  Co.,  119 
he  continued  temperate  and  faitliful  in  Mass.  400;  Naylor  r.  Fall  River  Co., 
his  employer's  service,  the  fact  that  he  118  Mass.  317;  Walsh  v.  Walley,  L.  R. 

663 


§  467  THE   DOMESTIC   KELATIOI^S.  [PAET   VI. 

§  465.  Servant's  Occupation  of  Master's  Premises;  No  Ten- 
ancy Presumed.  —  A  servant  who  occupies  premises  belonging 
to  his  master  is  not  presumed  to  occupy  as  tenaut,but  by  virtue 
of  the  relation  of  service  ;  and,  If  such  be  the  case,  he  acquires 
no  estate  therein  by  the  performance  of  his  duties,  even 
though  he  be  also  allowed  to  use  the  premises  for  carrying  on 
an  independent  business  of  liis  own.^  If  properly  dismissed 
from  the  service,  therefore,  he  has  no  right  to  remain  until 
ejected  upon  notice  as  a  tenant ;  but  the  termination  of  his 
service  is  likewise  the  termination  of  his  right  to  the  premises. 


CHAPTER   11. 

MUTUAL   OBLIGATIONS   OF  MASTER   AND    SERVANT. 

§  466.  Obligations  to  be  considered ;  as  to  Master ;  as  to 
Servant.  —  Some  obligations  arising  from  the  relation  of  ser- 
vice rest  more  especially  upon  the  master ;  others  again  more 
especially  upon  the  servant. 

§  467.  Master's  Obligation  as  to  Education,  Discipline,  &c. — 
First,  as  to  the  master.  A  moral  obligation  resting  upon 
every  master  whose  connection  with  his  servant  is  a  very 
close  one,  the  latter  being  manifestly  on  an  inferior  footing, 
is  to  exert  a  good  influence,  to  regard  the  servant's  mental 
and  spiritual  well-being.  Positive  law  enjoins  the  same  duty 
in  a  variety  of  instances  witli  regard  to  apprentices  and  work- 
men under  age,  by  requiring  their  masters  to  teach  them  to 


9  Q.  B.  o67.     A  servant  claiming  the         One  who    contracts   to   labor  for  a 

benefit  of  such  previous  notice  can  set  limited  period  cannot  be  compelled  to 

lip  no  implied  immunity  from  discharjie  stay  lon;j;er  against  liis  consent  in  order 

withoiit  notice  for  misconduct.     Basse  to  make  up  for  lost   time,  or  for  his 

r.  Allen,  43  Tex.  481.     Nor  does  one  en]plo3'er's  personal  convenience.    Bast 

abandon  the  service  lawfully  where  his  v.  Byrne,   51   Wis.   531;    Wyngert  v. 

drunkenness  or  other  misbehavior  pro-  Norton.  4  Mich.  286. 
Yoked    his  master's   just    resentment.  ^  White  v.   Bayle.r,  10  C.  B.  N.  S. 

Morgan  v.  Shelton,  28  La.  Ann.  822.  227 ;  Smith  Mast.  &  Serv.  40,  41. 
664 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  468 

read,  write,  and  cipher,  to  see  that  the}^  attend  pubHc  wor- 
ship, and  in  general,  to  take  due  care  of  their  morals.^ 

From  sucli  view  of  a  master's  obligation  comes,  doubtless, 
a  rule  which  some  deduce  from  the  old  books,  that  a  master 
has  the  common-law  right  to  chastise  his  servant  or  appren- 
tice moderately ;  but,  on  principle,  the  limitation  must  bo  to 
those  servants  or  apprentices  under  age,  who,  by  positive  law, 
are  committed  somewhat  as  children  to  their  master's  keep- 
ing.^ The  right  is  denied  as  to  ordinary  servants  in  this 
country.^  "  The  only  civil  remedies,"  says  an  English  writer, 
"a  master  has  for  idleness,  disobedience,  or  other  dereliction 
of  dut}-,  or  breach  of  contract  on  the  part  of  a  servant,  are 
either  to  bring  an  action  against  him,  or,  as  Puffendorf  ex- 
presses it,  '  to  expel  the  lazy  drone  from  his  family,  and  leave 
him  to  his  own  beggarly  condition.'  "  "^ 

§  468.  Master's  Obligation  as  to  furnishing  Necessaries.  —  As 
to  necessaries,  Kent  pronounces  the  better  opinion  to  be  tliat 
the  n:iaster  is  not  bound  to  provide  even  a  menial  servant 
with  medical  attendance  and  medicines  during  sickness.^ 
And  so  far  as  special  medical  attendance  furnished  an  adult 
servant  capable  of  taking  care  of  himself  is  concerned,  the 
rule  is  so  settled;^  though  Lord  Kenyon,  and  perhaps  Lord 
Eldon,  once  thought  otherwise.'^  Yet  a  master  is  legally 
bound  to  provide  medicines  for  his  apprentice.^  One's  conduct 
to  the  helpless  and  suffering  should  not  be  inhuman.  And 
reference  to  the  authorities  will  show  that,  as  to  domestic 
servants,  courts  are  not  indisposed  to  infer  authority  from 
the  master's  own  conduct.^  The  duty  of  a  master  to  provide 
food  and  other  necessaries  rests  upon  contract,  express  or 
implied  ;  and  it  was  the  English  doctrine,  as  expressed  in 

1  See  Stats.  N.Y.,  Conn.,  &c.,  in  2  s  g^ith  Mast.  &  Scrv.  118-120; 
Kent  Com.  262,  and  n.  Wennall    v.   Adney,    3  B.   &   P.   247  ; 

2  See  Bac.  Abr.  tit.  Master  and  Ser-  Sweetwater  Co.  v.  Glover,  29  Ga.  399; 
vant   (N.);    1   CI.   Com.  428;    2  Kent  Clark  v.  Waterman,  7  Vt.  76. 

Com.  260.  1  Scarman    v.   Castell,  1    Esp.  270; 

°  Commonwealth  i\  Baird,  1  Ashm.  Simmons  v.  Wilmott,  3  Esp   93. 

207  ;  Cooper  v.  State,  8  Baxt.  .324.  »  Reg.  v.  Smitli,  8  Car.  &  P.  153. 

*  Smith    Mast.   &    Serv.   69;    PuflF.  9  Cooper   v.  Phillips,    4    Car.   &  F. 

Law  Nature,  b.  6,  ch.  3,  §  4.  581  ;  Sellen  v.  Norman,  4  Car.  &  P.  80; 

6  2  Kent  Com.  261.  Friend's  Case,  Russ.  &  lly.  C.  C.  22. 

665 


§  470  THE   DOMESTIC    RELATIONS.  [PART   VI. 

1802,  that  neglect  to  furnish  sufficient  food,  clothing,  or 
lodging  to  any  infant  of  tender  years  unable  to  provide  for 
and  take  care  of  himself,  whether  child,  apprentice,  or  ser- 
vant, so  as  thereby  to  injure  his  health,  was  an  indictable 
offence  ;  which  principle  a  later  English  statute  has  extended 
even  further,  wherever  there  is  the  legal  liability  to  provide 
necessaries.^  It  may  be  presumed  that,  in  most  cases,  the 
reasonable  value  of  necessaries  furnished  a  servant  might  be 
set  off  against  the  servant's  wages,  where  the  master  was  not 
legally  bound  to  supply  them. 

§  469.  Master's  Obligation  as  to  finding  Work. —  HoW  far 
the  master  is  bound  to  find  work  for  his  servant  has  some- 
times been  considered  in  the  courts.  The  legal  principle  is 
that  of  substantial  justice.  A  master  may  hire  a  servant  for 
a  certain  period,  and,  paying  the  wages  or  salaiy  agreed 
upon,  may  keep  him  in  sufficient  work  or  not ;  but  he  cannot 
deprive  the  servant  of  his  full  compensation  through  a  discon- 
tinuance of  his  own  business,  or  from  other  like  cause.^  But 
where  the  contract  of  hiring  merely  contains  an  undertaking 
to  pay  certain  stipulated  wages  in  proportion  to  the  work  done, 
there  is  no  implied  obligation  on  the  master's  part  to  find 
work ;  though  the  disposition  is  to  construe  contracts  of 
doubtful  significance  into  an  agreement  on  the  master's  part 
to  enable  the  servant  to  earn  regular  and  reasonable  wages. ^ 

§  470.  Master's  Obligation  to  indemnify  Servant.  —  It  is  the 
duty  of  every  master  to  indemnify  his  servant  from  the  con- 
sequences of  lawful  acts,  done  in  pursuance  of  orders  which 
the  servant  was  bound  to  obey.  And  as  to  an  act  not  malum 
in  se,  but  which  might  have  been  either  lawful  or  unlawful, 
and  which  the  servant  was  induced  by  the  conduct  of  his 
master  to  believe  to  be  lawful,  the  rule  of  indemnity  likewise 
applies.'^     But  it  would  appear  that  for  an  act  malum  in  se,  or 

1  14  &  15  Vict.  c.  11.  As  to  indict-  W.  6-37  ;  Hartley  v.  Cummings,  5  C.  B. 
ing  the  husband  ratlier  than  the  wife,  247;  Smith  Mast.  &  Serv.  48,  50; 
see  Uex  v.  Saunders,  7  Car.  &  P.  277.     Sykes  v.  Dixon,  9  Ad.  &  EI.  G93. 

See  Smitli  Mast.  &  Serv.  117.  *  Collins   v.   Evans.   5  Q    B.  830; 

2  Aspdin  V.  Austin,  5  Q.  B.  671;  Rawlin^s  ;•.  Bell,  1  C.  B.  951  ;  Cro.  Jac. 
Elderton  v.  Emmens,  6  C.  B.  160;  468;  Story  Atrency,  §  339;  Smith 
Smith  Mast.  &  Serv.  49,  50.  Mast.  &  Serv.  121. 

3  See  Pilkiugton  v.  Scott,  15  M.  & 

666 


CHAP.  II.]  MUTUAL    OBLIGATIONS.  §  47^ 

which  the  servant  knew  to  be  unhiwful,  although  done  by 
liim  in  obedience  to  his  master's  orders,  the  master  is  not 
bound  to  indemnify  his  servant ;  for  the  servant  should  have 
refused  obedience.-^ 

§  471.  Master's  Obligation  to  receive  into  Service  the  Person 
engaged  ;  Remedies  for  Breach.  —  It  is  likewise  the  duty  of  the 
master  to  receive  into  his  service  a  person  already  engaged, 
and  if  he  fails  to  do  so,  lie  is  liable  in  damages.  And.  yet 
here  a  legally  binding  contract  would  have  to  be  shown  by 
the  plaintiff.2  Nor  will  courts  of  chancery  grant  injunction 
to  compel  specific  performance,  except  perhaps  in  cases  where 
the  relation  exists  only  by  remote  analogy  and  the  connection 
between  master  and  servant  is  not  close  ;  the  remedy  must 
otherwise  be  left  to  the  common-law  courts.^  "  Consider," 
said  Lord  Chancellor  Truro,  "  what  the  effect  would  be ; 
how  is  it  possible  for  an  employer  or  an  agent  to  go  on  in 
the  intimate  connection  which  such  a  contract  is  calculated 
to  create?"*  So,  too,  has  injunction  been  lately  refused  to 
enforce  a  contract  of  apprenticeship,  as  a  proceeding  without 
precedent.^  Where  the  contract  was  for  future  employment, 
and  the  employer  repudiates  without  justification  when  the  time 
comes,  thereby  refusing  to  receive  the  other  party  into  his 
service,  the  remedy  under  modern  practice  is,  not  an  action  for 
wages,  but  to  recover  damages  as  for  breach  of  the  contract.^ 

§  472.  Obligation  to  pay  Wages  ;  Servant's  Right  to  recover. 
—  The  servant's  right  to  compensation  follows  from  the  fact 
that  the  parties  have  fairly  entered  into  the  relation  of  em- 
ployer and  employed  with  the  reciprocal  rights  and  duties  of 
that  relation  ;  "^  and  it  should  be  presumed,  where  no  quasi 
parental  relation  existed,  that  such  labor  was  to  be  in  some 
way  remunerated,  and  this  most  naturally  by  money  wages.* 

1  Smitli,  ?7;.  See /5os^  c.  3,  as  to  ser-  ^  Howard  v.  Daly,  61  N.  Y.  362. 
vant's  own  liability  in  this  respect.  The  person  hired  sliould  seek  out  a  new 

2  Bracegirdle  v.  Heaid,  1  B.  &  Aid.  service,  so  as  to  reduce  the  damages,  lb. 
722  ;  Blogg  V.  Kent,  6  Bing.  614.  7  McDonald    v.  Boeing,    43  Mich. 

3  Stocker  v.  Brockelbank,  20  L.  J.  394. 

Ch.  N.  s.  408.  See  Willis  v.  Childe,  13  8  Moreland  v.  Davidson,  71  Penn. 
Beav.  117.  St.   371;    Hay  y.  Walker,  (55  Mo.    17; 

*  Stocker  v.  Brockelbank,  ib.  Jordan  v.  Foxworth,  48  Miss.  607. 


6  Webb  V.  England,  29  Beav.  44. 


667 


§  472  THE   DOMESTIC   RELATIONS.  [PART    VI. 

The  question  whether  the  person  who  sues  for  his  wages  did 
his  duty,  or,  if  discliarged,  was  discharged  without  fault,  is  for 
the  jury  to  decide  upon  all  the  facts. -^ 

Where  the  servant  has  been  wrongfully  discharged  from 
his  master's  employ,  two  remedies,  both  at  common  law,  are 
open  to  him :  one,  to  treat  the  contract  as  a  continuing  one, 
and  sue  in  damages  for  breach  thereof ;  the  other  to  consider 
it  as  rescinded,  and  sue  his  master  on  a  quantum  meruit  for 
the  services  he  has  actually  rendered.^  Formerly  it  was 
thought  that  he  had  a  third  remedy,  namel}^  to  wait  till  the 
termination  of  the  period  of  service,  and  then  sue  for  his  whole 
wages  in  assumpsit,  relying  on  the  doctrine  of  constructive 
service  ;  ^  but  according  to  the  best  authorities,  tliis  course 
cannot  now  be  adopted  ;  for  the  discharged  servant  is  bound 
to  make  the  best  use  of  his  time  and  seek  out  new  employ- 
ment.* Tiie  first  is  the  remedy  usually  adopted.  To  sustain 
this  action,  the  servant  must  have  been  ready  and  willing  to 
serve  ;  but  he  need  not  offer  to  do  so.  The  amount  of  dam- 
ages which  he  should  recover  must  depend  upon  the  nature 
of  the  contract  and  the  wages  agreed  upon ;  the  jury  may 
exercise  a  large  discretion  ;  and,  where  no  specific  wages  have 
been  agreed  upon,  the  measure  is  fixed  by  considering  what  is 
the  usual  rate  of  wages  for  the  employment  contracted  for, 
and  what  time  would  be  lost  before  another  situation  could  be 
obtained.^     The  second  form  of  action  treats  the  contract  of 

1  Echols  V.  Fleming,  58  Ga.  156.  Cas.  606  ;   Fewiiigs  v.  Tisdal,  1  Exch. 

2  Lilley  v.  Elwin,  11  Q.  B.  755;  2'.»5 ;  Smith  y.  Thompson,  8C.  B.  44; 
Plaiiche  V.  Colburn,  8  Bing.  14;  Col-  Given  v.  Charron,  15  Md.  502;  Nations 
burn  y.  Wonrlworth,  ."1  Barb.  381.  v.    Cudd,    22    Tex.    550;    Slierman   v. 

3  Gandall  v.  Pontigiiy,  1  Stark.  157  ;  Champlain  Trans.  Co.,  31  Vt.  162.  In 
Collins  V.  Price,  5  Bing.  132  ;  2  Smith  case  of  unwarrantable  discharge,  the 
Lead.  Cas.  17,  n.  to  Cutter  v.  Powell.  servant's  damages  are  prima  facie  the 

*  Smith  Mast.  &    Serv.  94,  n.,  and  amount  of  wages  for  the  full  term.    De 

cases  cited ;  Fewings  v.  Tisdal,  1  Exch.  Leon   v.   Echeverria,  45  N.  Y.  Super. 

295;  Beckham  y.  Drake,  2  Ho.   Lords  610.    But  if  employed  meantime  in  a 

Cas.  606;  Shermans.  Ciiamplain  Trans,  new   place,  this  reduces  tiie  dam.iges, 

Co.,  31  Vt.   162;  Goodman  v.  Pocock,  so  far  as  may   be  reasonable.     Ansley 

15  Q.  B.  576;  Chamberlin  v.  Morgan,  «.  Jordan,  61  Ga.  482.     See  further,  as 

68  Penn.  St.  168  ;  Perry  v.  Simpson,  &c.  to   proof,  Howard  v.    Chamberlin,    64 

Co.,  37  Conn.  520  ;  Howard  v.  Daly,  61  Ga.  684  ;  Bast  v.  Byrne,  51  Wis.  531 ; 

N.  Y.  362  Richardson   v.  McGoldrick,   43  Mich. 

^  See  Beckham  v.  Drake,  2  Ho.  Lords  476. 

668 


CHAP,  il]  mutual  obligations.  §  473 

service  and  hiring  as  rescinded  ;  and  the  ground  on  which 
the  servant  sues  is  one  applicable  to  contracts  in  general  ; 
nanieljs  that  when  one  party  to  a  contract  has  absolutely 
refused  to  perform  something  essential  on  his  side  of  the  con- 
tract, the  other  party  is  at  liberty  to  terminate  it,  and  sue  for 
services  rendered  under  a  quantum  meruit}  Where  this  rem- 
edy is  elected  the  servant  can  only  recover  wages  for  the 
period  during  which  he  actually  served.^  But  while  the 
servant  may  elect  either  of  the  two  remedies,  he  cannot  pur- 
sue them  together  ;  and  if  he  sues  on  both  counts  in  his  action 
he  must  take  the  verdict  upon  one  only.^ 

§  473.  The  Same  Subject ;  Rules  for  Payment  of  Wages  ;  Offsets  ; 
Preference ;  Apportionment,  &c.  —  Wages  are  due  in  general  for 
work  performed  ;  and  although  the  amount  of  wages  was  left 
to  the  master,  a  reasonable  remuneration  must  be  given.* 
Unless  the  servant  was  absolutely  worthless,  he  should  have 
at  least  what  his  services  Avere  worth,  even  though  negligent 
and  unskilfid.^  The  rule  is,  that  a  servant  discharged  for 
good  reason  is  entitled  to  wages  up  to  the  time  of  discharge, 
subject  to  rules  of  apportionment  to  be  presently  considered, 
and  the  special  terms  of  a  contract  ;  and  to  no  more.  But  the 
mere  existence  of  a  valid  contract  of  hirino;  and  service  does 
not  necessarily  imply  a  contract  to  pay  wages ;  for  board, 
lodging,  clotlies,  or  the  opportunity  of  learning  business, 
might  be  a  sufficient  compensation  ;  particularly  in  case  of 
the  young.*^     So  any  employer  has  a  right  to  judge  for  him- 

1  2  Smith  Lead.  Cas.  17,  ?J.  to  Cutter  may  be  entitled  to  sue  where  putting 
V.  Powell,  and  authorities  cited  ;  Sniitli  iiis  youngf  son  to  work.  Harris  v. 
Mast.  &  Serv.  99.  See  Goodman  i'.  Separks,  71  N.  C  372 ;  supra,  Part  IIL 
Pocock,  15  Q.  B.  576.  c.  3. 

2  Fewings  (•.  Tisdal,  1  Exch.  295;  3  Goodman  y.  Pocock,  15  Q.B.  576; 
Weed  V.  Burt,  78  N.  Y.  191  ;  Boyle  v.  Colburn  v.  Woodwortii,  31  Barb.  381. 
Parker,  4(5  Vt.  .343.  For  services  ren-  *  Bryant  v.  Flight,  5  M.  &  W.  114; 
dered  under  a  special  contract  which  Peacock  v.  Peacock,  2  Camp.  45  ;  Law- 
has  been  wrongfully  terminated,  or  its  son  v.  Perry,  Wright,  242.  But  see 
full  performance  prevented  by  the  Taylor  f.  Brewer,  1  M.  &  S.  290.  See 
master's  fault,  the  servant  may  recover  Goodman  v.  Pocock,  15  Q.  B.  576; 
as  upon  an  implied  quantum  mendt.  Ral-  Costigan  v.  Mohawlc  R.  E.  Co.,  2  Denio, 
ston  V.  Kohl,  30  Ohio  St.  92;  Dobbins  609. 

V.    Higgins,  78  111.  440  ;    Barr  v.  Van         «  McCormick   v.  Ketclium,  48  Wis. 

Duyn,  45  Iowa,  228.     But  cf.  Provost     643. 

V.  Carlin,  28  La.  Ann.  595.     The  father         «  Smith  Mast.  &  Serv.  100,  n. ;  Rex 

669 


§  473  THE   DOMESTIC!   RELATIONS.  [PART   VI. 

self  how  he  will  carry  on  his  own  business  ;  and  workmen, 
having  knowledge  of  the  circumstances,  must  judge  for  them- 
selves whether  they  will  enter  his  service.^ 

The  master  is  not  bound  to  pay  increased  wages  for  in- 
creased labor,  unless  he  has  contracted  to  do  so.^  Special 
terms  must  be  respected,  and  one  who  has  received  for  his 
services  all  that  was  bo7ia  fide  agreed  upon,  can  recover  no 
more,  although  the  services  may  have  been  worth  more.^  Nor 
is  there  any  new  implied  contract  to  pay  wages  on  simple 
dissolution  of  a  special  contract.^  The  action  for  wages 
should,  of  course,  be  brought,  not  against  a  third  party,  but 
against  the  person  by  or  for  whom  the  plaintiff  was  hired  ;  and 
to  ascertain  this  is  not  always  easy.^ 

The  master  cannot  set  off,  against  the  servant's  claim  for 
wages,  money  paid  by  him  to  his  own  medical  attendant, 
unless  the  servant  so  stipulated.^  Nor  a  gratuity  or  present 
to  the  servant  outside  the  contract  of  employment^  Nor,  in 
an  action  for  an  infant's  wages,  money  advanced  for  articles 
not  necessaries  ;  or  coach  fare  for  her  mother.^  Nor,  as  it  is 
held,  can  he  set  off,  against  wages,  a  claim  for  articles  lost  or 
broken  by  carelessness  ;  he  should  sue  in  a  cross-action.^  But, 
in  an  action  of  compensation  for  services,  the  emplo3'er  may 
show,  by  way  of  recoupment  of  damages,  loss  sustained 
through  the  breach  of  the  person  emploj^ed,^*'  and  in  modern 
practice  this  right  to  recoup  damages  is  liberally  applied, 

V.  Shinfield,  14  East,   541  ;   Davies  v.  ment,  the  statute  of  limitations  is  not 

Davies,  9  Car.  «&  P.  87  ;  Maltby  v.  Har-  construed  to  apply.     Smith  v.  Velie,  GO 

wood,  12  Barb.  473 ;  Meredith  t-.  Craw-  N.  Y.  106. 

ford,  34  Ind.  399  ;  Ansley  v.  Jordan,  61  6  Sellen  v.  Norman,  4  Car.  &  P.  80. 

Ga.  482.  7  Neal  v.  Gilmore,  79  Penn.  St.  421. 

1  H.iyden  v.  Smithville,  &c.  Co.,  29  Perquisites  may  have  entered  into  the 
Conn.  548.  contract  of  hiring  by  way  of  lessening 

2  Bell  V.  Drummond,  Peake,  45.  the  wages.  Bennett  v.  Stacy,  48  Vt.  163. 

3  Bradbury  v.  Helms,  92  111.  35.  8  Hedgeley  v.  Holt,  4  Car.  &  P.  104. 
*  Lamburn  v.  Cruden,  2  Man.  &  Gr.  9  Le  Loir  v.  Bristow,  4  Camp.  134. 

253.  30  Still  V.  Hall,  20  Wend.  51 ;  Pixler 

5  See  Smith  Mast.  &  Serv.  104, 105,  v.  Nicliols,  8  Iowa,  106  ;  Hunter  r.  Lit- 

and  cases  cited ;  Perrj' r.  Bailey,  12  Kan.  terer,  1  Baxt.  168;  Blodgett  v.  Berlin 

539;    Compton  v.  Payne,  69  111.    354.  Mills,  52  N.  H.  215  ;  English  y.  Wilson, 

"Where  a  servant  continues  in  his  mas-  34  Ala.  201.  See,  as  to  an  infant,  IMeek- 

ter's  employment  many  years,  an  ac-  er  v.  Hard,  31  Vt.  639.     And  see  Stod- 

count  being  kept  up  without  full  settle-  dard  v.  Treadwell,  26  Cal.  294. 

670 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  473 

Modern  bankruptcy  acts  frequently  provide  that  servants 
or  clerks  shall  be  preferred  to  general  creditors  in  the  distri- 
bution of  assets.^  It  would  appear  that  the  bankruptcy  of 
the  master  does  not,  jper  se,  dissolve  a  contract  of  hiring  ;  yet 
the  assignees  cannot  let  out  personal  services  for  him.^ 

The  death  of  the  master  discharges  his  servant ;  and,  ac- 
cording to  the  strict  rule  of  law,  it  would  appear  that  where 
the  contract  is  entire  for  a  year's  service,  and  neither  custom 
nor  statute  intervenes,  the  death  of  the  master  in  the  middle 
of  the  year  utterly  deprives  the  servant  of  compensation  for 
the  broken  period.^  A  contract  of  apprenticeship,  in  so  far 
as  it  was  a  personal  contract,  is  also  terminated  by  the  mas- 
ter's death.*  But  the  rule  of  apportionment  is  now  so  much 
favored  that  it  is  apprehended  to  be  unlikely  that  a  construc- 
tion so  inequitable  would  in  this  day  be  permitted  to  apply 
to  contracts  which  left  the  intention  of  the  parties  in  doubt 
on  this  point.  And  custom  is  applicable,  in  the  case  of  do- 
mestic servants  at  least,  so  as  to  give  them  wages  for  the 
whole  time  served,  though  they  do  not  continue  in  service  for 
a  year.^  The  executors  or  administrators  of  the  master  are 
the  persons  to  whom  a  servant  must  look  for  such  arrears ; 
not  an  intermeddler  with  the  estate,  nor  kindred.*^  In  some 
States,  wages  of  domestic  servants  and  laborers  are  made 
preferred  debts ;  independently  of  statute,  it  is  not  probable 
that  they  are  so  entitled."  Legacies,  if  actually  bequeathed 
to  servants,  are  sometimes  held  to  extinguish  claims  against 
the  master's  estate  for  wages.^     On  legal  principle,  moreover, 

1  See  12  &  13  Vict.  c.  106  ;  United  6  2  Wms.  Ex'rs,  822,  n.,  3d  ed.; 
States  bankruptcy  act,  March  2,  18G7,    "Welchman  v.  Sturgis,  13  Q.  B.  522. 

§  27  (since  repealed).  ^  2  Wra,  Ex'rs,  ib.     But  see  2  Bl, 

2  See  Thomas  v.  Williams,  1  Ad.  &    Com.  511. 

El.  685 ;  Williams  v.  Chambers,  10  Q.  8  gee  Booth  v.  Dean,  1  Mj-l.  &  K. 

B.  387.  500;  Smith  Mast.  &  Serv.  343  etspq.  But 

2  1  Wms.  Ex'rs,  644 ;  Smith  Mast.  &  when  work  is  rendered  in  consideration 

Serv.  111.     But  see  Jackson  v.  Bridge,  of  a  future  legacy,  and  the  legacy  is  not 

12  Mod.  650.  left,  the  servant  may  sue  the  estate  on 

*  Bac.  Abr.  tit.  Master   &  Servant  a  qunntnm  meruit.   See  Nimmo  v.  Walk- 

(G.).     But  statutes  are  not  always  to  er,  14  La.  Ann.  581;  Sword  v.  Keith, 

this  effect.      Phoebe  v.  Jay,  1  Bre.  268.  31    Mich.   247  ;  Sliakespenre  v.  Mark- 

5  Cutter  V.   Powell,   6  T.   R.   320;  ham,  17  N.  Y.  Supr.  311,322.     Or  for 

Smith  Mast.  &  Serv.  112.  breach  of  the  agreement.  Lee  v.  Carter, 

671 


§  474  THE   DOMESTIC    RELATIONS.  [PART    VI. 

when  a  servant  dies  in  the  middle  of  the  term  of  his  eno^agre- 
merit,  his  representatives  can,  it  seems,  claim  nothing ;  but 
here  again  might  custom  apply  the  rule  of  apportionment,^ 
as  local  codes  sometimes  do.^  So  where  the  servant  leaves 
wrongfull3%  or  is  dismissed  by  his  master  for  riglitful  cause, 
the  periodical  pay-da}^  not  having  come  round,  he  can  claim 
nothing  pro  rata.^  Yet,  with  regard  to  the  common  case  of  a 
hired  servant,  though  the  hiring  be  in  a  general  way,  the 
understanding  is  common  that  the  servant  shall  be  entitled  to 
his  wages  for  the  time  he  serves.^  Unless  some  such  rule 
could  be  enforced,  the  stronger  part}'  would  be  constantly 
tempted  to  make  dismissal  a  pretext  for  refusing  to  pay  to 
the  weaker  the  little  pittance  which  was  justly  due.  And, 
again,  there  are  circumstances  from  which  a  waiver  of  for- 
feiture of  the  servant's  accrued  wages  will  be  presumed,  even 
though  the  service  was  terminated  by  reason  of  the  servant's 
misconduct.' 

§474.  The  Same  Subject;  Change  of  Contract ;  Excuse  by  Act 
of  God;  Justifiable  Termination,  &c.  —  The  original  contract  of 
hiring  may  be  changed  without  any  new  express  contract  of 
the  parties ;  this  change  being  inferred  from  the  facta,  and 
the  master's  liability  for  wages  fixed  accordingly.  Thus,  one 
engaged  to  work  on  half  time  and  receive  half  wages  may 
become  actually  employed  on  full  time,  and  so  may  gain  the 
right  to  recover  full  wages.*^  Hence,  too,  wages  may  be  in- 
creased or  diminished,  upon  a  new  understanding,  while  the 
service  goes  on  ;  or  one  who  comes  into  a  family  on  the  foot- 
ing of  a  member  without  pay  at  all  may  subsequently  be- 


52  Ind.  342.     And  see  supra,  Part  III.,  Wend.  514 ;  Beach  v.  Mullin,  5  Vroom. 

c.  5.  343. 

1  Smith  Mast.  &  Serv.  115 ;  Cutter  *  See  remarks  in   Cutter  v.  Powell, 
V.  Powell,  G  T.  11.  320.  supra  ;  Smitli  Mast.  &  Serv.  116.     And 

2  Dryer  v.  Lewis,  57  Ala.  551.  see  Kessee  ;;.  MayfieUl,  14  La.  Ann.  90; 
8  2  Smith  Lead.  Cas.  17,  n.  to  Cutter  Gates    v    Davenport,    29  r,arb.    160; 

r.  Powell;   Spain   c   Arnott,   2  Stark.  Massey  ?'.  Taylor,  5  Cold.  447;  Costi- 

236;    Turners.  Robinson,  6  Car.  &  P.  gan  v.    Mohawk   R.  R.  Co.,  2  Denio 

15 ;  Ridgway  v.  Hungerford  Market  Co.,  609 ;  Byerlee  v.  Mendel,  39  loAva,  382. 

3  Ad.  &  El.  171;  Lane   v.    Phillips,  6  ^  Patnote   v.   Sanders,    41   Vt.  66; 

Jones  (Law),  455;   Whitley  v.  Murray,  Prentiss  v.  Ledyard,  28  Wis  131. 

34   Ala.  155  ;    Marsh   v.   Rulesson,   1  ^  Edrington  v.  Leach,  34  Tex.  285. 

672 


CHAP.  11.]  MUTUAL  OBLIGATIONS.  §  474 

come  entitled  to  wages. ^  And  a  change  of  employers  having 
occurred  by  reason  of  some  change  of  business,  the  new  em- 
ployers may  render  themselves  liable  for  the  wages  of  the 
person  employed  ;  while,  on  the  other  hand,  the  original  em- 
ployer continues  liable  to  the  person  employed,  if  the  latter 
receives  neither  actual  or  constructive  notice  that  the  change 
has  occurred.^ 

Where  the  performance  of  a  condition  is  prevented  by  the 
act  of  God,  it  is  excused.^  And  where  one  performs  services 
under  a  contract,  and  is,  before  the  expiration  of  the  full 
period,  disabled  by  sickness  or  inevitable  accident  from  com- 
pleting his  contract,  he  is  entitled  to  recover  as  upon  a  quan- 
tum meruit  for  the  period  of  such  disability.^  Yet  it  seems 
that  where  illness  or  other  causes  renders  one  permanently 
incompetent  to  perform  his  contract,  this  is  a  sufficient  cause 
of  dismissal,  if  the  emploj^er  choose  to  so  regard  it.^  And 
if  one  engages  in  service,  concealing  a  disability  which  must 
have  interfered  with  due  performance,  he  should  bear  the  ill 
consequences.^ 

Where  the  agreement  provides  that  either  party  may  ter- 
minate it  at  any  time,  the  servant  may  quit  at  any  time  on  his 
own  motion,  and  recover  on  the  contract  for  services  ren- 
dered.' But  if  the  servant  agrees  to  work  for  a  given  time, 
with  the  privilege  of  leaving  if  dissatisfied,  he  cannot  recover 
if  he  leaves  without  alleging  dissatisfaction,  but  merely  to 
attend  to  other  business  ^  But  if  employed  for  a  fixed 
period  and  discharged  without  cause,  the  servant  should  be 

1  Generally,  where  one  is  hired  for         ^  Cruise  Dig.  Condition,  41,  43. 

a  fixed   compensation   for  a  specified  *  Wolfe   v.   Howes,   29  N.   Y.  197 ; 

time  and  continues  afterwards  to  serve,  Cuckson  v.  Stones,  1  El.  &  El.  248 ; 

the  presumption  is  that  compensation  Fenton  v.  Clark,  11  Vt.  557 ;    Seaver 

shall  continue  at  the  same  rate.     But  v.  Morse,  20  Vt.  G20. 

the  actual  agreement  of  service  con-  ^  gg^  Harmer  v.  Cornelius,  5  C.  B. 

trols  such  questions.     Smith  v.  Velie,  n.  s.   236  ;    Cuckson  v.  Stones,  supra ; 

GO  N.   Y.   106.      Notification    by    the  Seaver  v.  Morse,  20  Vt.  620. 

master  that  he  will  hereafter  pay  dif-  ^  Jennings   v.  Lyons,  39  "Wis.  553. 

ferently  may  establish  a  new  contract,  As  where  one's  wife  engaged  to  work 

if  the  servant  goes  on  with  his  work,  for  a  year  while  pregnant.    Ih. 

Spicer  i-.  Earl,  41  Mich.  191.  ^  Evans  v.  Bennett,  7  Wis.  404. 

2  Perry   v.   Simpson,    &c.    Co.,   37  8  Monell  v.  Burns,  4  Denio,  121. 
Conn.  408. 

43  673 


§  475  THE   DOMESTIC  KELATIONS.  [PART    VI. 

compensated  for  the  full  unexpired  term,  under  the  reserva- 
tions already  noted.^ 

§  475.  The  Same  Subject;  Termination  by  Mutual  Consent; 
Special  Conditions,  &c.  —  If  the  contract,  though  for  a  certain 
period,  be  terminated  by  mutual  consent,  recovery  may  be 
had  on  a  quantum  meruit  for  the  services  actually  performed, 
though  for  nothing  more,  unless  expressly  agreed  to.^  And 
work  accepted  by  the  employer,  though  not  done  according 
to  the  terms  of  the  contract,  must  be  paid  for  at  its  fair 
value,  not  exceeding  the  stipulated  price.^  So  a  person  em- 
ployed on  a  particular  service  by  the  month  or  year,  may 
have  a  right  to  compensation  for  services  rendered  on  request, 
out  of  the  range  of  such  employment,  even  without  express 
contract  as  to  the  terms  of  payment*  Conditions  precedent, 
such  as  submission  of  work  to  inspectors,  performance  accord- 
ing to  the  estimate  of  third  parties,  special  stipulations  and 
the  like,  may  enter  into  such  contracts.^  But  all  such 
stipulations  call  for  rational  interpretation,  and  even  if  the 
master  reserves  the  right  to  discharge  or  disapprove  work 
at  discretion,  a  captious  exercise  of  this  right  is  not  to  be 
inferred  allowable.^ 

Where  the  agreement  was  that  the  value  of  labor  and  ser- 
vices should  be  applied  in  payment  of  land  for  the  purchase 
of  which  no  written  contract  had  been  made  out,  it  was  held 
that  an  action  for  the  value  of  the  labor  and  services  would 
not  lieJ  But  if  I  sell  land  to  another,  to  be  paid  for  in  work 
which  he  presently  performs,  and  I  then  refuse  to  convey,  he 
may  recover  pay  for  his  work.^     So  it  was  held  where  the  de- 

1  Chiles  V.  Nail  Mill  Co.  68  111.  123.  6  gloan  v.  Hayden,  110  Mass.   141; 

2  Given  v.  Charron,  15  Mtl.  502 ;  Miller  v.  Cuddy,  43  Mich.  273  ;  Alex- 
Patnote  v.  Sanders,  41  Vt.  66.  As  ander  v.  Americus,  61  Ga.  36.  For- 
where  an  emplo3-er  acts  and  speaks  so  fciture  of  wages  in  such  contracts  is 
as  to  warrant  the  servant  in  supposing  not  to  be  favored  ;  but  such  conditions 
he  has  his  consent  to  leave.  Boyle  v.  plainly  expressed  (as,  for  instance,  un- 
Parker,  46  Vt.  343.  less  the  servant  gives  notice)  are  up- 

3  English  V.  Wilson,  34  Ala.  201 ;  held.  Walsh  v.  Walley.  L.  R.  9  Q.  B, 
Dermott  ;;.  Jones,  23  How.  (U.  S.)  220.     367;  Preston  v.  American  Linen  Co., 

<  Cincinnati,  &c.,  R.  R.  Co.  v.  Clark-  119  Mass.  400. 
son,  7  Ind.  595.  "^  Congdon  v.  Perry,  13  Gray,  3. 

5  See  Baason  v.  Baehr,  7  Wis.  516;         8  Leach  v.  Rogers,  28  Ga.  247. 
Butler  V.  Tucker,  24  Wend.  447. 

674 


CHAP.  II.]  MUTUAL  OBLIGATIONS.  §  476 

fenclant  had  contracted  to  sell  the  plaintiff  a  house,  which  the 
plaintiff,  with  the  defendant's  knowledge  and  without  objec- 
tion from  him,  put  in  repair,  and  also  performed  labor  in  part- 
payment  ;  and  where  afterwards  he  was  prevented  from  com- 
pleting his  contract  by  the  fault  of  the  defendant ;  that  he 
might  recover  for  both  the  labor  performed  and  the  value  of 
the  improvements.^ 

§  476.  Master's  Representations  as  to  Servant's  Character ; 
Guaranty  as  to  Character,  &c. —  Mr.  Starkie  observes  that  the 
giving  a  character  of  a  servant  is  one  of  the  most  ordinary 
communications  which  a  member  of  society  is  called  on  to 
make,  but  is  a  duty  of  great  importance  to  the  interests  of 
the  public;  and  in  respect  of  that  duty  a  party  offends  griev- 
ously against  the  interests  of  the  community  in  giving  a  good 
character  where  it  is  not  deserved,  or  against  justice  and 
humanity  in  either  injuriously  refusing  to  give  a  character, 
or  in  designedly  misrepresenting  one  to  the  detriment  of  the 
individual.^  But  in  the  absence  of  any  specific  agreement  to 
that  effect  there  is  no  legal  obligation  binding  a  person,  who 
has  retained  another  as  a  servant,  to  give  that  person  any 
character  at  all  on  dismissal ;  and  no  action  will  lie  against 
him  for  refusing  to  do  so.^  And  the  decisions  on  this  sub- 
ject fully  establish  the  principle  that  representations  of  a 
servant's  character,  oral  or  written,  are  on  the  footing  of 
privileged  communications ;  and  that  wilful  misrepresenta- 
tion must  appear  on  the  master's  part  to  render  him  liable ; 
not  merely  wrong  and  unfair  statements  made  in  good  faith 
and  without  malicious  intent.* 

But  a  guaranty  for  the  honesty  of  a  servant  is  sometimes 
given  for  the  master's  protection  ;  just  as  an  official  will  fur- 
nish his  bondsmen,  or  as  some  companies  guarantee  the  fidelity 
of  clerks  and  trustees.  In  such  cases,  since  the  rights  of 
a  guaranty  are  carefully  watched,  the  master  must  on  his 

1  Wright  V.  Haskell,  45  Me.  489.  Hodgson  v.  Scarlett,  1  B.  &  Aid.  240; 

2  1  Stark.  Slander,  293.  2  Stark.  Slander,  58.     And  see,  as  to 
2  Smith  Mast.  &  Serv.  222;  Carrol    compelling  inspection  of  letter  written 

V.  Bird,  3  Esp.  20L  concerning  a  discharged  servant,  Hillu. 

*  Smitli,    ib.     22.3-250     and    cases     Campbell,  L.  R.  10  C.  P.  222. 
cited  ;  Fountain  v.  Boodle,  3  Q.  B.  12 ; 

675 


§  477  THE  DOMESTIC   RELATIONS.  [PAET  TL 

part  exercise  due  caution.  Thus,  on  a  continuing  guaranty  for 
the  honesty  of  a  servant,  if  the  master  discovers  that  the  servant 
has  been  guilty  of  dishonesty  in  the  course  of  the  service,  and 
instead  of  dismissing  the  servant  he  chooses  to  continue  him 
in  his  employ,  without  the  knowledge  and  consent  of  the 
surety,  express  or  implied,  he  cannot  afterwards  have  recourse 
to  the  surety  to  make  good  any  loss  which  may  arise  from  the 
dishonesty  of  the  servant  during  the  subsequent  service.^ 

§  477.  Obligations  resting  specially  upon  the  Servant ;  Per- 
formance of  his  Engagement.  —  Now,  as  to  the  servant.  Of  the 
mutual  liabilities  of  master  and  servant,  some  are  to  be  dis- 
cussed with  more  especial  reference  to  the  latter  than  the 
former.  Thus  the  servant,  once  engaged  by  a  valid  contract 
to  enter  his  employer's  service,  cannot  refuse  or  neglect  to  do 
so  without  becoming  liable  in  damages  ;  though  whether  the 
master  ma}'-  care  to  pursue  his  remedy  is  another  matter.^ 
The  same  be  said  of  one  who,  without  sufficient  cause,  leaves 
his  employment  before  the  legal  termination  of  the  period 
agreed  upon.^  That  the  service  is  unpleasant  or  the  labor 
severe  would  not  alone  justifj^  his  departure.* 

While  performing  service  under  his  contract  the  servant 
is  bound  to  regard  the  interests  of  his  master.  He  cannot,  it 
would  appear,  solicit  his  master's  customers  into  his  own 
business,  so  long  as  his  engagement  lasts,  without  rendering 
himself  liable  to  action ;  but  it  is  held  that  he  can  do  so  when 
the  service  is  at  an  end,  and  he  sets  up  for  himself.^  He 
must  account  to  his  emploj^er,  like  all  other  agents,  for  money 
or  other  goods  received  in  the  line  of  duty,  and,  except  in 
certain  cases,  cannot  set  up  the  right  of  a  third  party  in 
opposition  to  the  employer's  interests.^ 

1  Pliillips  V.  Foxall,  L.  II.  7  Q.  B.  if  the  servant  had  availed  himself,  to 
666.  As  to  the  master's  liabilities  for  his  master's  injury  and  his  own  profit, 
the  servant's  injuries,  see  infra,  c.  4.  of    certain   peculiar  facilities   derived 

2  See  Richards  v.  Hayward,  2  Man.  under  the  contract  of  employment, 
&  Gr.  574 ;  Smith  Mast.  &  Serv.  64.  though  he  waited  till  the  engagement 

3  Bird  V.  Randall,  3  Burr.  1345  j  ended  before  making  use  of  them.  Sec 
Lees  V.  Whitcomb,  5  Bing.  34.  Adams  Express  Co.  v.  Trego,  35  Md. 

4  Angle  V.  Hanna,  22  111.  420.  47. 

5  Nichol  V.  Martyn,2  Esp.  7.'^2.  Yet  «  See  Story  Agency,  §  217,  and  n. ; 
we  presume  that  this  action  would  lie,  Dixon  v.  Hamond,   2  B.  &  Aid.  310; 

676 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  480 

§  478.  Servant's  Accountability  to  his  Master ;  Negligence, 
Unskilfulness,  &c.  —  So  is  the  servant  liable  for  gross  negli- 
gence in  the  care  of  his  master's  property  entrusted  to  him  ; 
though  not  for  ordinary  accidents.^  Servants  are  also  liable 
for  fraud  and  misfeasance,  as  in  cases  of  simple  bailment  gen- 
erall3\  Suits  of  this  sort,  strictly  applicable  to  domestic  ser- 
vants, are  extremely  rare  ;  but  there  are  instances  to  be  found 
in  the  old  books.  Thus  it  is  said  that  if  a  man  deliver  a  horse 
to  his  servant  to  go  to  market,  or  a  bag  of  money  to  cany  to 
London,  which  he  neglects  to  do,  the  master  may  have  an 
action  of  account  or  detinue  against  him.^  An  employee  or 
servant  is  liable  in  a  suit  brought  by  his  master  to  indemnify 
the  latter  from  the  consequences  of  his  negligence  or  mis- 
conduct.3  And  this,  too,  notwithstanding  the  concurring 
neglisrence  of  another  servant  not  made  a  defendant  with 
him.*  And  a  person  employed  to  do  work  requiring  skill  or 
involving  unusual  hazard,  and  undertaking  to  do  it  for  suit- 
able compensation  in  a  skilful  or  careful  manner,  is  bound  to 
so  do  it ;  and  he  is  responsible  to  his  employer  for  injury 
occasioned  the  latter  by  the  negligent  manner  in  which  he 
performed  the  work.^ 

§  479.  Master  and  Servant  may  defend  one  another.  —  The 
old  writers  say  that  the  servant  may  justif}^  a  battery  in  the 
necessary  defence  of  his  master  ;  and  the  master,  as  the  weight 
of  argument  goes,  may  do  the  same  on  his  servant's  behalf.^ 

§  480.  Servant  a  Competent  Witness  for  his  Master.  —  A  mere 
agent  or  servant  is  a  competent  witness  for  his  principal  or 
master,  from  public  convenience  or  necessity." 

Smith   Mast.   &   Serv.   67,   and   cases  ^  Willard    v.    Pinard,    44   Vt.   34  ; 

cited ;    Murray  v.  Mann,  2  Exch.  538 ;  Holmes  v.  Onion,  2  C.  B.  n.  s.  790 ;  Pix- 

Cheesman  v.  Exall,  6  Exch.  341.  ler  v.  Nichols,  8  Iowa,  106  ;  English  v. 

1  Savage  v.  Walthew,  11  Mod.  135;  Wilson,  34  Ala.  201 ;  Parker  v.  Piatt, 
Bac.  Abr.  tit.  Master  &  Servant  (M),  74  111.  430 ;  Page  r.  Wells,  37  Mich. 
(I);  Smith  Mast.  &  Serv.  65.  415.      See   also    Story  Bailm.   §  432; 

2  Bac.Abr.tit.Master&Servant(M).  Schoul.  Bailm.  107.     But  as  to  an  in- 

3  Green  v.  New  Eiver  Co.,  4  T.  R.  fant  servant,  see  Meeker  v.  Hard,  31 
589  ;  Pritchard  v.  Hitchcock,  6  Man.  &  Vt.  639. 

Gr.  165;  Smith  Mast.  &  Serv.  66.     But         6  See  2  Kent  Com.  261 ;  1  Bl.  Com. 
see  Colburn  v.  Patmore,  1  Cr.  M.  &  R.     429. 

73.  •?  Wainwright  v.  Straw,  15  Vt.  215 ; 

<  Zulkee  v.  Wing,  20  Wis.  408.  Stringfellow  v.  Mariot,  1  Ala.  573  ;  Doe 

677 


§  481  THE  DOMESTIC   RELATIONS.  [PAKT   VI. 


CHAPTER  III. 

EIGHTS  AND   LIABILITIES    OF    THE    SERVANT   AS    TO    THIRD 

PERSONS. 

§  481.  Servant  not  personally  liable  on  Contracts ;  Excep- 
tions. —  As  a  general  rule,  servants  are  not  liable  personally 
on  contracts  entered  into  by  them  on  behalf  of  their  masters. 
Such  a  principle  would  be  inconsistent  with  the  very  rela- 
tion. But  like  any  other  agent,  a  servant  may  make  himself 
liable,  provided  he  contract  on  his  own  and  not  his  master's 
behalf.^  Questions  of  this  sort  turn  upon  circumstances  ;  as 
to  whom,  for  instance,  the  credit  was  given.  But  if  there  be 
a  wrong  or  omission  of  right  on  the  servant's  part;  if,  for 
instance,  he  transcends  his  powers,  or  acts  without  authority, 
like  all  other  agents  he  becomes  personally  liable  to  the  per- 
son with  whom  he  deals  in  his  master's  name.^  For,  in  re- 
spect to  such  contract,  he  is  no  servant  at  all,  but  one  rather 
who  wilfully  or  innocently  misrepresents  himself  as  such. 

Instances  of  this  principle  occur  in  the  every-day  transac- 
tions of  life.  A  broker  who  puts  his  own  name  to  a  bill  of 
exchange,  without  words  to  imply  an  agency,  renders  himself 
personally  liable  to  a  stranger.^  But  the  receipt  of  a  servant 
is  the  receipt  of  his  master,  for  money  rightfully  paid  him  in 
the  course  of  business.*  And  a  sheriff's  deputy  is  not  hable  to 
a  judgment  creditor  for  money  collected  by  him  under  an 
execution  in  the  creditor's  favor.^ 

V.  Himelick,  4  Blackf.  494 ;  1  Greenl.  Paterson  v.  Gandasequi,  15  East,  62 ; 

Evid.  §  416  ;   1  Pliill.  Evid.  10th  ed.  s.  c.  2  Smith  Lead.  Cas.  358. 

507  et  sp.q.  ^  Leadbitter  v.  Farrow,  5  M.  &  S. 

1  Smith  Mast.  &  Serv.  194  ;  Story  345 ;  Jones  v.  Littledale,  6  Ad.  &  El. 
Agency,  §  261 ;  Owen  v.  Gooch,  2  Esp.  486. 

567 ;   Thomson  v.  Davenport,  9   B.  &         *  Bamford  v.  Shuttleworth,  11  Ad. 
C.  88.  &  El.  926. 

2  Smout  V.  Ilberry,  10  M.  &  W.  1 ;         &  Colvin  v.  Holbrook,  2  N.  Y.  126. 

678 


CHAr.  III.]         EIGHTS,  ETC.,  OP   THE   SERVANT.  §  482 

The  reason  of  the  general  rule  of  exemption  is,  that  the 
principal  or  master,  not  the  agent  or  servant,  shall  answer 
for  the  consequence  of  the  latter's  contract.  The  servant 
is  directly  responsible  to  his  master,  not  then  to  strangers.^ 

§  482.  Rule  of  Servant's  Liability  for  his  Torts  and  Frauds. 
—  But,  as  Lord  Kenyon  has  observed,  the  principle  does  not 
apply  to  cases  where  there  is  corruption  in  the  foundation  of 
the  contract,  or  it  is  bottomed  in  oppression  or  immorality .^ 
Where  money  is  obtained  by  means  of  trespass  or  tort ;  where 
a  servant  misappropriates  a  fund  entrusted  to  him  to  be  paid 
to  others  ;  in  these  and  similar  cases  it  has  been  held  that  the 
servant  is  suable  by  third  persons.^  If,  for  instance,  a  debtor 
sends  by  his  own  servant  money  which  he  owes  his  creditor, 
and  the  servant  refuses  to  deliver  it,  and  retains  it,  an  action 
for  the  money  may  be  maintained  by  the  creditor  against  the 
servant.  But  it  is  otherwise  if  the  debtor  countermanded  his 
orders  and  received  the  money  back  from  the  servant.^ 

In  cases  of  tort,  the  rule  is  general  that  all  persons  con- 
cerned in  the  wrong  are  chargeable  as  principals.  For  a 
misfeasance,  therefore,  or  positive  wrong,  which  affects  the 
person  or  property  of  another,  the  servant  cannot  shield  him- 
self by  the  excuse  that  he  acted  merely  in  obedience  to  his 
master's  orders,  or  for  his  master's  benefit.^  It  is  said  that  in 
such  a  case  he  is  sued,  not  as  a  deputy  or  servant,  but  as  a 
wrong-doer.*" 

But  a  distinction  is  sometimes  taken  between  misfeasance 
and  nonfeasance.  For  mere  negligence  nr  nonfeasance  the 
servant  is  not  liable  to  a  stranger.^     Thus  where  a  banker  is 


And   see   infra,  §  489,  as  to  the  doc-  v.    Cotton,    12   Mod.  488;    Perkins   v. 

trine  of  agency  Jiiiplicable  to  the  ser-  Smith,  1   Wils.  328 ;    Smith   Mast.   & 

vant's  acts  on  his  master's  behalf.  Serv.  213,  214  ;  Ricliardson  v.  Kimball, 

1  See  Shearm.  &  Redf.  Negligence,  28  Me.  463 ;  Bennett  v.  Ives,  30  Conn. 
128 ;  Smith  Mast.  &  Serv.  104  et  scq.  329  ;  Johnson  v.  Barber,  5  Gilm.  425. 

2  Miller  v.  Aris,  3  Esp.  232  ;  Smith  See  Hill  v.  Caverly,  7  N.  H.  215. 
Mast.  &  Serv.  204.  6  ggg   Lane    v.   Cotton,   supra,   per 

3  BuUer    r.   Harrison,   Cowp.   565;  Lord  Holt;    Hoffman    v.   Gordon,   15 
Tugman  v.  Hopkins,  4  Man.  &Gr.  389  ;  Ohio  St.  211. 

Howell  V.  Batt,  5  B.  &  Ad.  504.  7  gee  Lane    v.   Cotton,   supra,   per 


^  Lewis  V.  Sawyer,  44  Me  832.  Lord  Holt. 

6  Sands  v.  Child,  3  Lev.  352 ;  Lane 


679 


§  483  THE   DOMESTIC   KELATIONS.  [PART   VI. 

employed  to  collect  a  note,  which  he  puts  into  the  hands  of 
another  banker,  through  whose  negligence  the  debt  is  lost, 
the  creditor  cannot  sue  the  latter  banker,  though  he  was  the 
one  actually  at  fault.^  This  same  principle  is  applied  in 
Massachusetts,  to  protect  one  servant  from  the  injurious  con- 
sequences of  his  own  wrongful  acts  to  a  fellow-servant  when- 
ever such  acts  amount  to  nothing  more  than  mere  negligence 
or  carelessness.^  So  the  servant  of  a  carrier  is  not  generally 
responsible  for  the  loss  of  a  parcel,  to  the  owner,  who  should 
rather  look  to  the  master.^  And  a  servant  who  has  driven  a 
stray  horse  from  the  highway  into  his  master's  pasture,  for 
the  purpose  of  preventing  it  from  straying  on  cultivated  land, 
does  not  become  liable  for  its  conversion  by  turning  it  into 
the  highway  again  by  direction  of  his  master.* 

Perhaps  the  true  principle  is  to  refer  all  such  acts  of  the 
servant  to  the  scope  of  his  employment  in  the  particular  ser- 
vice of  his  master.  We  shall  presently  examine  the  doctrine 
of  respondeat  superior  with  reference  to  the  master,  under 
which  head  it  is  most  commonly  considered.  For  as  a  master 
is  more  likely  to  be  pecuniarily  responsible  than  his  servant, 
so  do  those  who  would  sue  for  injuries  incline  most  willingly 
to  make  the  master  the  defendant  in  their  suits  to  recover 
damages.^ 

§  483.  Torts  and  Frauds  of  Public  Officers.  —  Government  is 
not  liable  for  the  torts  and  frauds  of  its  agents.  Nor  are  pub- 
lic officers  in  general  liable  for  the  misdeeds  of  their  subordi- 
nates. Thus  the  Postmaster-General  cannot  be  sued  for  the 
loss  of  letters  in  the  post-office  through  the  fault  of  his  agents.^ 
Public  policy  furnishes,  perhaps,  the  strongest  reason  for  this 
doctrine.  "  As  to  an  action  lying  against  the  party  really 
offending,"    Lord  Mansfield,  however,  observed,  "  there  can 

1  Montgomery  Bank  v.  Albany  Bank,         ^  See  next  c. 

7  N.  Y.  459.  6  Wliitfield  v.  Lord  Le  Despencer, 

2  Albro  r.  Jaquith,  4  Gray,  99.  And  Cowp.  765.  Nor  should  he  be,  since 
see  Brown  v.  Lent,  20  Vt.  529.  But  he  is  but  the  servant  of  government, 
see  Phelps  v.  Wait,  30  N.  Y.  78.  —  the  common  employer  of  both  su- 

*  Williams  v.  Cranstoun,  2   Stark,  perior  and  subordinate   officials.     See 

82.   See  Smith  Mast.  &  ScTv.2\oetseq.  4  Am.  Law  Rev.  1-17.  And  see  School. 

4  Wilson  V.  McLaughlin,  107  Mass.  Bailm.  :i40-242, 
587. 

680 


CHAP.  IV.]  EIGHTS,  ETC.,  OF   THE   MASTER.  §  486 

be  no  doubt  of  it ;  for  whoever  does  an  act  by  which  another 
person  receives  an  injury,  is  liable  in  an  action  for  the  injur}' 
sustained."  ^  And  in  several  instances  have  deputy-post- 
masters been  sued  in  damages  for  their  own  torts .^  So  are 
certain  public  officers,  as  sheriffs  and  others,  acting  in  a 
purely  ministerial  capacity,  frequently  held  to  answer  the 
consequences  of  their  misconduct.^  But  great  latitude  is  to 
be  allowed  to  one's  official  acts  performed  from  a  sense  of 
duty  as  guardian  of  the  public  interests,  and  with  honorable 
motive,  even  though  private  individuals  may  incidentally 
suffer  detriment  thereby. 

§  484.  Criminal  Accountability  of  Servant.  —  For  his  unlaw- 
ful acts  knowingly  committed  in  his  master's  service  a  servant 
is  generally  criminally  answerable.*. 


CHAPTER  IV. 

GENERAL   EIGHTS   AND   LIABILITIES   OF   THE   MASTER. 

§  485.  Leading-  Division  of  this  Chapter.  —  In  this  chapter 
we  shall  discuss,  first,  the  general  rights,  second,  the  general 
liabilities,  of  the  master  as  concerns  third  persons  and  his 
servant. 

§  486.  Master's  Right  of  Action  for  Injuries  to  Servant. — 
First,  as  to  his  rights.  The  right  of  action  to  the  master 
for  personal  injuries  sustained  by  his  servant  is  recognized  in 
several  instances.^  This  right  grows  out  of  the  loss  of  ser- 
vice sustained  by  the  master,  and  the  same  principle  has 
been  noticed  with  reference  to  parents.  A  service  de  facto 
is  sufficient  in  all  such  cases.^     And  it  cannot  be  pleaded  in 

1  Cowp.  765.  And  see  Smith  Mast,  soil  v.  Stallebrass,  11  Ad.  &  El.  .301 ; 
&  Serv.  219.  Dixon  v.  Bell,  1  Stark.  287 ;  Ames  v. 

2  See  5  Burr.  2709,  2711,  2715.  Union  Co.,  117  Mass.  541. 

.  8  Bac.  Abr.  tit.  Sheriff.  6  gniith  Mast.   &  Serv.  83-85,   and 

*  State  V.  "Walker,  16  Me.  241.  cases  cited ;   Bac.  Abr.  tit.  Master  & 

^  See  Duel  v.  Harding,   Stra.  595;  Servant  (0).     The  relation   of   mas- 

Ilall  V.  Hollander,  4  B.  &  C.  660;  Hod-  ter  and  apprentice  enables  such  suit  to 

681 


§  487  THE   DOMESTIC   RELATIONS.  [PART  VI. 

defence  that  the  acts  complainod  of  amounted  to  felony,  and 
that  the  person  committing  them  had  not  been  prosecuted. 
But,  under  a  familiar  rule,  the  master  cannot  maintain  an 
action  for  injuries  which  cause  the  immediate  death  of  his 
servant.^ 

§  487.  Right  of  Action  for  Seduction,  Enticement,  &c.,  of  Ser- 
vant.—  Again,  the  action  for  seduction  depends  upon  the 
existence  of  the  relationship  of  master  and  servant ;  and  the 
loss  of  service  gives  the  right  of  action.  This  action  is  usu- 
ally brought  by  the  parent,  or  one  standing  in  the  stead  of  a 
parent ;  though  the  legal  remedy  is  not  perhaps  confined  to 
such  persons.^ 

For  enticing  away  or  harboring  one's  servant  the  common 
law  also  gives  the  right  of  action  against  the  offending  party  ; 
and  where  a  person,  after  notice,  continues  to  employ  another 
man's  servant,  that  other,  it  is  said,  may  maintain  an  action 
against  him,  although  at  the  time  he  hired  him  the  second 
master  did  not  know  that  he  was  hiring  another  man's  ser- 
vant ;  whence  it  follows  that  one  who  did  not  entice  may  yet 
be  liable  for  harboring.^  The  mere  attempt  to  entice  a  ser- 
vant away,  no  damage  following,  does  not  entitle  the  master 
to  maintain  an  action.*  Nor  will  the  action  lie  after  the  mas- 
ter has  recovered  from  the  servant  a  stipulated  penalty  for 
leaving  the  service  ;  ^  nor  for  inducing  a  servant  to  leave  at 
the  expiration  of  the  time  for  which  he  was  hired,  though  he 
had  no  previous  intention  of  leaving.^ 

A  genuine  subsisting  contract  of  service  between  the 
servant  and  his  former  master  should,  of  course,  be  shown ;  "> 

be  brought.     Here  the  injury  was  sus-  182.     And  see  Lumley  v.  Gye,  2  EU.  & 

tained  while  the  servant  was  a  passen-  Bl.   216,  where   tlie   question   is  fully 

ger.     Ames  v.  Union  R.,  117  Mass.  541.  discussed.      But  laches  may  be  impu- 

See  §  457  supra,  n.  table  to  the  master.     Demyer  v.  Sou- 

1  Osborn  v.  Gillett,  L.  R.  8  Ex.  88.  zer,  6  Wend.  436. 

2  See  Parent  and  Child,  supra ;  Noice  *  Bird  v.  Randall,  3  Burr,  1352.  Cf . 
V.  Brown,  39  N.  J.  L.  569  ;  Smith  Mast.  Haskins  v.  Royster,  70  N.  C.  601. 

&  Serv.  85  et  seq. ;   Addison  and  other  ^  Ihid. 

general  writers  on  Torts.  6  Nichol  v.  Martyn,  2  Esp.  734 ;  Bos- 

3  Fawcet  v.  Beavres,  2  Lev.  63;  ton  Glass  Manufactory  v.  Binney,  4 
Smith  Mast.  &  Serv.  79 ;  Blake  v.  Lan-  Pick.  425. 

yon,  6  T.  R.  221 ;    Bird  v.  Randall,  3         ^  See  Smith  Mast.  &  Serv.  79,  and 
Burr.  1352;  Reg.  v.  Daniel,  6  Mod.  99,    cases  cited;  Sykes  v.  Dixon,  9  Ad.  & 
C82 


CHAP.  IV.]  EIGHTS,  ETC.,  OF    THE   MASTER. 


§487 


though  there  may  be  a  binding  contract  of  service  merely  exe- 
cutory, which  one  wilfully  prevents  another  from  entering  upon 
so  as  to  render  himself  liable  in  damages  for  that  offence.^ 
Nor  can  the  so-called  master,  where  two,  socially  equal,  oc- 
cupy a  relation  of  constructive  service,  rely  with  certainty 
upon  the  force  of  language  to  help  him  through  his  suit 
against  a  stranger.  In  a  late  English  case,  some  doubts  were 
expressed  whether  this  remedy  was  to  be  extended  beyond 
the  case  of  menial  servants  and  laborers ;  whether,  in  fact, 
the  higher  classes  could  claim  its  benefit  at  all  in  matters 
growing  out  of  their  mutual  contracts.^  The  general 
rule  of  the  law  is  certainly  to  confine  its  remedies  by  action 
to  the  contracting  parties,  and  to  damages  directly  and  proxi- 
mately consequent  on  the  part  of  him  who  is  sued ;  the  case 
of  master  and  servant  being  exceptional.^  The  right  of  action 
in  such  cases,  founded  upon  the  pure  relation  of  service,  is  not 
greatly  favored  in  this  country,  though  it  is  distinctly  recog- 
nized.* And  the  enticement  of  a  servant  in  some  States  renders 
one  liable  to  prosecution.^ 


El.  69.3 ;  Campbell  v.  Cooper,  34  N.  H. 
49.  It  is  enough  that  the  service  is 
one  at  will,  if  subsisting  when  inter- 
rupted. 

1  Walker  v.  Cronin,  107  Mass.  555. 

2  Lumley  v.  Gye,  2  Ell.  &  BI.  216. 
This  suit  was  with  reference  to  the  en- 
ticement of  Wagner,  the  vocalist,  from 
one  tlieatre  to  another.  The  majority 
of  the  court  (Coleridge,  J.,  dissenting) 
thought  the  action  would  lie,  even 
though  the  parties  were  not  strictly 
master  and  servant.  As  to  one  orally 
contracting  to  serve  as  a  farm  laborer, 
see  Daniel  v.  Swearingen,  6  Rich.  297. 

^  See  Coleridge,  J.,  supra.  And  see 
Ashley  v.  Harrison,  1  Esp.  48. 

*  See  Scidmore  v.  Smith,  13  Johns. 
322;  Peters  r.  Lord,  18  Conn.  337; 
Salter  v.  Howard,  43  Ga.  601 ;  Burgess 
V.  Carpenter,  2  S.  C.  n.  s.  7  ;  Bixby  v. 
Dunlap,  56  N.  H.  456  ;  Haskins  v.  Iloy- 
ster,  70  N.  C.  601 ;  Noice  v.  Brown,  39 
N.  J.  L.  569.  In  general  a  scienter 
should  appear ;  but,  where  the  entice- 


ment was  purely  malicious,  greater 
damages  may  be  allowed.  Bixby  v. 
Dunlap,  56  N.  H.  456 ;  Morgan  v.  Smith, 
77  N.  C.  37.  And  see,  .as  to  measure  of 
damages,  Lee  v.  West,  47  Ga.  311. 

5  Bryan  v.  State,  44  Ga.  328;  Rose- 
berry  V.  State,  50  Ala.  160.  The  old 
rule  was  that  a  master  deprived  of  the 
services  of  an  apprentice  or  servant  by 
the  enticement  or  harboring  of  another 
might  sometimes  waive  the  tort,  and 
sue  for  the  wages  due  from  the  second 
master :  the  maxim  being,  that  the  ac- 
quisition of  the  servant  was  the  acqui- 
sition of  the  master ;  but,  as  Mr.  Smith 
has  observed,  this  rule  applied  more 
strictly  during  the  existence  of  villen- 
age.  See  Smitii  Mast.  &  Serv.  80,  81. 
Most  of  the  cases  to  sustain  this  princi- 
ple relate  to  apprentices  in  a  seafaring 
way ;  but  it  is  thought  to  extend  to  ser- 
vants in  general.  Co.  Litt.  117  a,  n. ; 
Smith,  supra,  and  cases  cited ;  Lightly 
V.  Clouston,  1  Taunt.  112. 

683 


§  489  THE  DOMESTIC   RELATIONS.  [PART   VI. 

The  general  doctrine  which  upholds  the  master's  action  in 
all  these  torts  is,  that  a  valid  and  subsisting  service  owe<l 
to  the  master  has  been  interrupted,  to  his  injury,  by  another's 
wrongful  act. 

§  488.  Whether  Servant's  outside  Acquisitions  belong  to  Mas- 
ter, &c.  —  What  a  servant  may  acquire  during  the  relation  of 
service,  entirely  without  the  legitimate  consideration  of  such 
service,  does  not  belong  to  the  master.  This  rule  must  be 
reasonably  and  beneficially  applied  according  to  circum- 
stances. One  may  become  bound  by  a  contract  for  hiring, 
but,  if  not  an  absolute  slave  (and  such  a  class  our  law  does 
not  now  recognize),  he  may  generally  gain  something  for 
himself  otherwise  if  he  choose.  Thus,  if  one  in  the  service 
of  another,  not  employed  to  invent,  make  an  invention,  the 
patent-right  is  his,  and  not  his  master's.^  And  the  same  rule 
applies  to  salvage  money,  the  result  of  extraordinary  service 
on  his  part.2  And  one  may,  moreover,  stipulate  that  outside 
certain  hours  he  shall  have  his  own  time.^  But  the  master 
shall  have  the  advantage  of  his  servant's  contracts  as  to  mat- 
ters within  the  scope  of  the  service.^ 

It  is  held  in  New  Hampshire,  that  if  a  servant,  having  his 
master's  money  for  a  specific  purpose,  make  use  of  it  in  per- 
forming a  service  which  he,  without  his  master's  privity,  has 
undertaken  for  another,  the  master  cannot,  by  afterwards 
adopting  the  servant's  act  as  his  own,  charge  that  other  party 
upon  the  contract  made  by  him  with  the  servant.^ 

§  489.  Liability  of  Master  upon  Servant's  Contracts  ;  Servant's 
Agency.  —  Second.  As  to  the  master's  liabilities,  A  master 
is  liable  for  the  contract  of  his  servant,  made  in  the  course 
of  his  employment  about  his  master's  business.^     Supposing 

1  Bloxam  v.  Elsee,  1  Car.  &  P.  558  was  found  on  his  master's  premises. 
But  see  Sraitli  Mast.  &  Serv.  82.  Hamaker  ;;.  Blanchard,  90   Penn.  St. 

2  Mason  v.  The  Blaireau,  2  Cranch,  377.  See  2  Sclioul.  Pers.  Prop.  14-17. 
240.  5  Webb  v.  Cole,  20  N.  H.  490.     As 

3  "Wallace  v.  De  Young,  98  111.  638.      to  a  master's  right  to  reserve  wages 
*  Damon  v.  Osborn,  1  Pick.  481.     A    when  served  with  garnishment  or  trus- 

eervant  who  finds  lost  property  may  tee  process,  see  Davis  v.  Meredith,  48 

assert  the  legal  rights  of  finder  for  his  Mo.  2G3. 

own  benefit  against  all  but  the  true         6  Helyear  v.  Hawke,  5  Esp.  72. 
owners,  notwithstanding  the  property 

684 


CHAR  IV.]  EIGHTS,  ETC.,  OF   THE  MASTER.  §  4S9 

I  have  a  servant,  and  that  servant  is  in  the  habit  of  purchas- 
ing the  family  supplies,  in  the  course  of  his  usual  employ- 
ment; his  contracts  for  such  purchases  will  bind  me.  But 
is  that  simply  because  he  is  my  servant?  If  his  usual  em- 
ployment be  upon  the  farm,  and  I  never  gave  him  authority 
to  make  purchases,  he  cannot  bind  me  by  going  to  the  store 
merely  because  he  happens  to  be  my  servant.  So  I  can  au- 
thorize others  to  purchase  family  supplies :  it  may  be  my 
wife,  or  my  child,  or  any  friend.  In  all  such  cases,  then,  I 
am  bound,  because,  as  is  commonly  said,  I  have  constituted 
another  my  agent,  not  strictly  because  I  have  a  servant.  No 
power,  therefore,  can  be  inferred  from  the  relation  of  master 
and  servant,  it  is  said,  by  which  the  latter  can  bind  the  for- 
mer.^ Mr.  Smith  states  the  principle  more  correctly,  when 
he  says  that  the  power  which  a  servant  possesses  of  binding 
his  master  by  contracts  is  founded  upon,  or  rather  is  the  basis 
of,  the  general  law  of  principal  and  agent.^  For  in  truth,  it 
would  seem  that  the  relation  of  master  and  servant  is  the 
older  at  the  law.  However  this  may  be,  the  rule  is  properly 
stated,  at  the  present  day,  to  be  that  the  servant  can  only 
bind  his  master  as  his  agent ;  and  this  on  the  principle,  com- 
mon to  both  branches  of  the  law,  that  the  act  of  the  servant 
or  agent  is,  in  fact,  the  act  of  his  master  or  principal :  the 
maxim  being,  Qui  facit  per  aliumfacit  per  se.^ 

The  well-known  rules  of  agency  need  not,  then,  be  set  out 
here  at  any  length.  We  only  observe  that  the  contract  of  a 
servant,  in  order  to  bind  the  master,  must  be  within  the  scope 
of  his  authority  ;  that  this  authority  may  be  expressly  con- 
ferred, or  may  be  implied  from  the  master's  conduct;  that 
subsequent  ratification  of  the  servant's  acts  is  as  binding  as  a 
previous  authority ;  that  the  authority  of  a  servant  is  coex- 
tensive with  his  usual  employment ;  and  that  the  scope  of  his 
authority  is  to  be  measured  by  the  extent  of  his  employment.^ 
All  these  principles  the  reader  will  expect  to  find  much  more 

1  Moore  v.  Tickle,  3  Dev.  244.  *  See  Story  Agency,  §§  74,  75;  ib. 

2  Smith  Mast.  &  Serv.  122.  See  §  239  et  seq. ;  Bird  v.  Brown,  4  Exch. 
Bac.  Abr.  tit.  Master  &  Servant  (K).        798 ;  Smitli  Mast  &  Serv.  123-126;  Co. 

^  lb.  And  see  Co.  Litt.  52  a ;  Story  Litt.  207  a,-  Bac.  Abr.  tit.  Authority 
Agency,  §§  7,  8.  (B) ;  2  Kent  Cora.  612  et  seq. 

685 


§  489  THE   DOMESTIC   RELATIONS.  [PART  VI. 

fully  illustrated  in  any  treatise  upon  agency  than  in  one  which 
professes  to  take  up  simply  the  law  of  the  domestic  relations. 
There  may  be  servants  for  a  variety  of  purposes ;  there  may 
be  agents,  too,  for  a  variety  of  purposes ;  and  between  ser- 
vant and  agent  is  as  yet  no  strict  line  of  legal  demarcation. 
In  general  a  master  is  not  considered  liable  on  the  contract 
of  his  servant,  unless  the  servant,  at  the  time  he  entered  into 
it,  assumed  to  act  as  his  agent.^  But  this  principle  is  not 
artificially  applied,  the  question  of  actual  intent  prevailing.^ 

Where  a  servant  is  employed  to  transact  business,  and  has 
no  particular  orders  with  reference  to  the  manner  in  which 
that  business  is  to  be  transacted,  he  is  considered  as  invested 
with  all  the  authority  necessary  for  transacting  the  business 
entrusted  to  him  and  which  is  usually  entrusted  to  agents 
employed  in  similar  matters.  In  every  case,  such  authority 
embraces  the  appropriate  means  to  accomplish  the  desired 
end.^  Thus,  a  servant  sent,  without  money,  to  buy  goods, 
has  implied  authority  to  pledge  his  master's  credit.^  And  in 
numerous  instances  the  master  has  been  considered  bound  by 
his  servant's  warranty,  that  being  usual  in  effecting  certain 
sales ;  though  not  where  the  warranty  is  subsequent  to  the 
sale  and  not  part  of  the  same  transaction  ;  ^  for  the  rule  is 
general  that  acts  and  admissions  by  the  servant  out  of  the 
course  of  his  employment  will  not  bind  the  master.^  If  the 
master  intends  limiting  his  responsibility  for  the  servant's 
acts  performed  in  the  usual  scope  of  emplo3m'ient,  he  should 
give  due  notice  to  those  dealing  with  the  servant.'^ 

1  Wilson  V.  Tumman,  6  M.  &  G.  236 ;  Helyear  v.  Hawke,  5  Esp.  72  ;  Woodin 
4  Inst.  317;  Walker  v.  Hunter,  2  C.  &  v.  Burford,  2  Cr.  &  M.  391;  Saunder- 
B.  334.  son  v.  Bell,  2  Cr.  &  M.  304 ;  and  otlier 

2  See  Trueman  v.  Loder,  U  Ad.  &  cases  cited  in  Smith  Mast.  &  Serv.  129, 
El.  594,  595;  Smith  Mast.  &  Serv.  132.  130. 

3  Story  Agency,  §,§  GO,  85;  Smith  6  Pairlie  v.  Hastings,  10  Ves.  128; 
Mast.  &  Serv.  128;  Cox  v.  Midland  Story  Agency,  §  136 ;  Garth  t>.  Howard, 
Counties  R.  R.  Co.,  3  Exch.  278 ;  How-  8  Bing.  451. 

ard  V.  Baillie,  2  H.  Bl.  618.  "^  As  where  one  intends  that  parties 

*  Tobin    t'.   Crawford,  9   M.   &   W.  dealing  with  his  clerk  or  servant  in  a 

718.     And  see  Weisger  v.  Graham,  3  particular  line  of  transactions  should 

Bibb,  313.  look  to  the  latter  alone  for  payment. 

5  See  Murray  v.  Mann,  2  Exch.  538 ;  Pardridge  v.  La  Pries,  84  111.  51. 

Alexander  v.  Gibson,  2  Campb.  655; 

68G 


CHAP.  IV.]  IIIGHTS,  ETC.,  OF   THE   MASTER.  §  490 

There  is  an  important  legal  distinction  between  general 
agents  and  special  agents ;  hence  conies  the  rule  that  wher- 
ever a  master  has  held  out  his  servant  as  his  general  agent, 
whether  in  all  kinds  of  business,  or  in  transacting  business  of 
a  particular  kind,  the  master,  in  the  absence  of  contrary 
notice,  will  be  bound  by  the  servant's  act,  if  within  the 
scope  of  his  usual  employment,  notwithstanding  the  servant 
has  acted  contrary  to  his  master's  orders.^  This  is  a  princi- 
ple of  frequent  application.^  But  where  a  servant  is 
employed  by  his  master  to  act  for  him  in  a  single  transac- 
tion, he  must  be  regarded  as  the  special  agent  of  his  master; 
and  in  such  case  it  is  incumbent  upon  every  one  dealing 
with  him,  who  wishes  to  charge  his  master  upon  his  con- 
tracts, to  inquire  into  the  extent  of  his  authority ;  as,  should 
he  exceed  it,  his  master  will  not  be  bound.^ 

Since  the  nature  of  the  usual  employment  of  a  servant  is 
the  measure  of  his  implied  authority,  it  follows  that  this 
authority  can  neither  be  limited  by  the  private  instructions 
of  the  master  nor  controlled  by  any  secret  agreement  be- 
tween him  and  his  servant.  "If  this  could  be  done,"  says  a 
recent  writer,  "in  what  a  perilous  predicament  would  the 
world  stand  in  respect  of  their  dealings  with  persons  who 
may  have  secret  communications  with  their  principal.  There 
would  be  an  end  of  all  dealing  but  with  the  master."^  But 
if  a  third  party  knows  of  private  agreements  or  instructions, 
he  cannot,  of  course,  charge  the  master  upon  any  inconsis- 
tent contract ;  for  it  enters  as  an  element  into  his  own  deal- 
ings with  that  servant.^ 

§  490.  Master's  Civil  Liability  to  Others  for  Servant's  Torts.  — 
Hitherto  we  have  spoken  of  the  master's  liability  on  his  ser- 
vant's contracts  ;  now  we  come  to  his  civil  liability  for  the 
servant's  torts.  This  subject  receives  at  the  present  day 
more  attention  in  the  courts  than  any  other  topic  of  the  so- 

1  Smith  Mast.  &  Serv.  132-135  ;  v.  Evans,  2  Ld.  Kaym.  928 ;  Waters  v. 
Story  Agency,  §§  126,  127.  Brogden,  1  Y.  &  J.  457. 

2  See  Nickson  v.  Brohan,  10  Mod.  *  Smith  Mast.  &  Serv.  133 ;  10 
109;  Rimell  r.  Sampayo,  1   Car.  &  P.  Mod.  110. 

255 ;  Jordan  v.  Norton,  4  M.  &  W.  155.         5  Howard  v.  Braithwaite,  1  Ves.  & 
8  Smith  Mast.  &  Serv.  137  ;   "Ward    B.  209. 

687 


§  490  THE   DOMESTIC   RELATIONS.  [PART   VI. 

called  law  of  master  and  servant ;  perhaps  more  than  all  the 
other  topics  together ;  but  the  illustrations  so  utterly  tran- 
scend the  relation  of  domestic  service,  being  borrowed  in  great 
part  from  the  analogies  of  modern  business  corporations  and 
servants  in  such  employ,  that  we  shall  make  no  effort  to  fol- 
low these  doctrines  into  their  minute  details.  Here  we  find 
not  only  the  maxim  qui  facit  ^yer  aliumfaeit  per  se  cited  (so 
well  applied  to  the  law  of  agency),  but  that  other,  more 
strictly  appropriate  to  the  present  relation,  respondeat  supe- 
rior. The  universal  rule  is  that  whether  the  act  of  the  servant 
be  of  omission  or  commission,  whether  his  negligence,  fraud, 
deceit,  or  perhaps  even  wilful  misconduct,  occasion  the  in- 
jury, so  long  as  it  be  done  in  the  course  and  scope  of  his 
employment,  his  master  is  responsible  in  damages  to  third 
persons.^  And  it  makes  no  difference  that  the  master  did 
not  give  special  orders ;  that  he  did  not  authorize,  or  even 
know,  of  the  servant's  act  or  neglect;  for  even  though  he 
disapproved  or  forbade  it,  so  long  as  the  act  was  done  in  the 
course  of  the  servant's  employment,  he  is  none  the  less 
liable. 2 

So  far  is  this  doctrine  carried  that  a  master  is  even  held  liable 
for  an  injury  occasioned  by  what  might  to  many  minds  appear 
the  wanton  and  violent  conduct  of  his  servant  in  the  perform- 
ance of  an  act  within  the  scope  of  his  employment.^  We 
should  say,  however,  that  a  proper  analysis  of  the  cases 
where  a  master  is  held  responsible  for  his  servant's  torts, 
would  show  either  that  the  servant  was  negligent  within 
the  scope  of  his  employment ;  or  else  that  he  displayed  a 
wanton    or   reckless    purpose   to    accomplish    his    master's 

1  Story  Agency,  §  452 ;  Smith  Mast,  senger  whora  he  deemed  to  be  intoxi- 
&  Serv-  151,  152 ;  Shearm.  &  Eedf.  cated,  forcibly  dragged  him  out  and 
Neghgence,  65.  threw  him  vipon  the  ground,  so  that  he 

2  Smith,  ib.  A  principal  may  be  was  seriously  injured,  it  was  iield  that 
answerable  where  he  has  received  the  the  proprietor  was  liable.  Seymour  v. 
benefit  of  his  agent's  fraud  committed  Greenwood,  7  Hurl.  &  Nor.  355.  And 
within  the  scope  of  authority.  Mackay  for  a  servant's  assault  in  the  perform- 
V.  Commercial  Bank,  L.  E.  5  P.  C.  ance  of  the  service,  the  master,  though 
410.  Cf.  Church  v.  Mansfield,  20  in  no  manner  consenting  or  aiding, 
Conn.  284.  has  been  held  liable.     Wade  y.  Thayer, 

3  Thus,  where  the  conductor  of  an  40  Cal.  578. 
omnibus,  in  removing  therefrom  a  pas- 

688 


CHAP.  IV.]  EIGHTS,  ETC.,  OF   THE  MASTER. 


§490 


employment  in  a  wrongful  manner,^  for  if  he  wilfully  grati- 
fied his  own  malice  under  the  pretext  of  serving  his  master, 
he  alone  should  be  answerable  for  his  violence. 

Whether  an  act  amounts  to  negligence,  misfeasance,  and 
the  like,  is  to  be  determined  in  each  case  by  its  own  circum- 
stances.2  The  injury  occasioned  may  be  to  person  or  prop- 
erty.^ 

A  master  is  liable,  though  the  act  of  the  servant  was  not 
necessary  for  the  proper  performance  of  his  master's  orders, 
or  was  really  contrary  thereto  ;  so  long  as  the  servant  was 
acting:    in    substantial   execution    of    his    master's    orders.* 


1  See  Howe  v.  Newmarch,  12  Allen, 
49 ;  Cohen  v.  Dry  Dock  R.,  69  N.  Y. 
170  ;  Rounds  v.  Delaware  R.,  64  N.  Y. 
129,  per  Andrews,  J. 

2  See  Crofts  v.  AVaterhouse,  3  Bing. 
319. 

8  But  among  the  many  instances 
which  have  been  considered  as  falling 
within  the  rule  are  these :  Negligent 
driving  by  a  servant.  Michael  v.  Ales- 
tree,  2  Lev.  172  ;  Jones  v.  Hart,  2  Salk. 
441.  Though  not  inevitable  accident 
without  fault.  Hohnes  i-.  Mather,  L.  R. 
10  Ex.  261.  The  negligent  kindling  of 
a  fire.  Filliter  v.  Phippard,  11  Q.  B. 
347.  This  principle  is  frequently  ap- 
plied to  fires  caused  by  locomotive 
engines.  See  Smith  Mast.  &  Serv. 
153,  n.  Piling  up  wood  improperly. 
Harlow  v.  Humiston,  6  Cow.  189.  Mis- 
management of  a  boat,  whereby  an- 
other is  injured.  Page  v.  Defries,  7 
Best  &  S.  137 ;  Huzzey  v.  Field,  2  Cr. 
M.  &  R.  432.  Fraud  committed  in 
the  course  of  the  servant's  employ- 
ment, according  to  some  authorities. 
Story  Agency,  §  264;  Southern  v. 
How,  Cro.  Jac.  471.  Mistaken  arrest 
under  certain  circumstances.  Moore 
V.  Metropolitan  R.  R.  Co.,  L.  R.  8  Q.  B. 
36.  But  see  Allen  v.  London,  &c.  R. 
R.  Co.,  L,  R.  6  Q.  B.  65.  Infringe- 
ment of  a  patent  by  workmen.  Betts 
V.  De  Vitre,  L.  R.  3  Ch.  429.  Unskil- 
ful workmanship.  Gilmartin  v.  New 
York,  55  Barb.  239.  If  the  owner  of  a 
dog  appoints  a  servant  to  keep  it,  the 
44 


servant's  knowledge  of  the  dog's  fero- 
city is  the  knowledge  of  the  master. 
Baldwin  v.  Casella,  L.  R.  7  Ex.  325. 
The  rule  may  apply  likewise  where  a 
servant  leaves  the  bars  down,  or  a 
gate  or  door  negligently  open.  See 
Chapman  i'.  New  York,  &c.  R.  R. 
Co.,  33  N.  Y.  369.  Or  throws  things 
out  of  a  window  carelessly  upon  a 
passer-by.  Corrigan  v.  Union  Sugar 
Refinery,  98  Mass.  577.  And  it  is  to 
be  observed  that  the  master's  respon- 
sibility is  not  confined  to  those  who 
work  under  his  immediate  supervision, 
but  extends  to  all  others  whom  he 
selects  to  do  any  work  or  superintend 
any  business  for  him.  Rex  v.  Hosea- 
6on,  14  East,  605 ;  Laugher  v.  Pointer, 
5  B.  &  C.  554 ;  Wayland  v.  Elkins,  1 
Stark.  272.  As  if  he  should  employ  a 
bailiff,  steward,  or  superintendent. 
How  far  this  principle  might  be  ex- 
tended, it  is  useless  to  speculate. 

Where  the  injury  was  the  combined 
carelessness  of  master  and  servant,  the 
master  ought  the  more  to  be  held 
liable.  Tuel  v.  Weston,  47  Vt.  634. 
But  unless  the  master  was  more  than 
ordinarily  careless,  and  chargeable  in 
fact  with  gross  misconduct,  he  ought 
not  to  be  held  liable  for  punitory  dam- 
ages, but  only  so  as  to  compensate  the 
party  injured.  Cleghorn  v.  N.  Y.  Cen- 
tral R.,  56  N.  Y.  44 ;  Hawes  v.  Knowles, 
114  Mass.  518. 

*  Smith  Mast.  &  Serv.  157. 

689 


§  491  THE   DOMESTIC    RELATIONS.  [PART   VI. 

Perhaps  this  may  not  readily  be  understood.  But  take  the 
common  instance  of  negligent  driving ;  where,  we  shall 
suppose,  a  coachman  or  driver,  injudiciously  or  recklessly,  or 
even  intentionally,  but  not  wantonly,  turns  or  races  his 
horses  so  as  to  run  down  another's  carriage.^  Unless  the 
rule  of  liability  were  carried  to  such  an  extent,  we  should 
find  masters  constantly  escaping  the  consequences  of  their 
servants'  behavior. 

§491.  The  Same  Subject;  Limitations  of  Rule.  —  But  a 
master  is  not  responsible  for  any  act  or  omission  of  his  ser- 
vants which  is  not  connected  with  the  business  in  which  they 
serve  him,  and  does  not  happen  in  the  course  or  the  scope  of 
their  employment.^  Beyond  the  scope  of  his  authority,  the 
servant  is  as  much  a  stranger  as  any  other  person.  Thus, 
where  a  servant  is  employed  only  to  harrow  one  field  and 
watch  a  fire  in  another,  and  he  undertakes  besides  to  burn  a 
pile  of  rubbish.3  So,  where  one  who  is  authorized  to  distrain 
cattle  trespassing  on  his  master's  land,  drives  the  horses  of  a 
neighbor  on  to  the  land  and  then  distrains  them.*  Or  where 
one  performs  a  task  outside  of  his  ordinary  and  proper 
employment,  or  turns  aside  from  a  journey  in  which  he  was 
employed,  to  take  a  different  one,  and  thereby  commits  the 
injury.^  The  distinction  in  such  cases  is  not  always  clear,  as 
their  examination  will  show  ;  but  we  should  hardly  expect  to 
see  the  rule  of  respondeat  superior  applied  where  a  wrong  is 
done  wholly  for  one's  own  purpose  and  in  his  own  concerns, 
disconnected  from  the  employment  of  the  master  in  question.^ 

1  Croft  V.  Alison,  4  B.  &   Aid.  500 ;         3  Wilson  v.  Peverlj^  2  N.  H.  548. 

Joel  V.   Morrison,   6   Car.  &   P.    501  ;  And  see  Oxford  v.  Peter,  28  111.  434. 
Sleath  V.  Wilson,  9  Car.  &  P.  607.  And         *  Lyons  v.  Martin,  8  Ad.  &  El.  512  ; 

see  Illidge  v.  Goodwin,  5  Car.  &  P.  190 ;  Goodman  v.  Kennell,  3  Car.  &  P.  167  ; 

McDonald   v.   Snelling,  14  Allen,  290.  Lamb  v.  Lady  Palk,  9  Car.  &  P.  629 ; 

Aliter,  as  to   a  runaway  horse,  where  M'Kenzie  v.   McLeod,    10  Bing.   385 ; 

tlie  driver  is  not  careless.     Hohnes  v.  Oxford  v.  Peter,  28  111.  434. 
Mather,  L.  R.  10  Ex.  201.  ^  Storey  v.  Ashton,  L.  R.  4  Q.  B.  476  ; 

•^  Smith  Mast.  &  Serv.  160 ;  Shaw  v.  Rayner   v.   Mitchell,  2   C.  P.  D.  357  ; 

Reed,  9  W.  &S.  72;  Ilarriss  v.  Mabry,  Sheridan  v.  Charlick,  4  Daly,  338;  Cav- 

1  Ired.  240  ;  Lowell  v.  Boston  &  Lowell  anaugh  v.  Dinsmore,  19  N.  Y.  Supr.  465 ; 

R.  R.   Co.,  23  Pick.   24 ;   Shearm.   &  Stone  i'.  Hills,  45  Conn.  44.     See  also 

Redf.  Negligence,  69  ;  Foster  v.  Essex  Schoul.  Bailra.  135,  for  the  application 

Bank,  17  Mass.  500;  Brown  v.  Purvi-  of  this  doctrine  to  the  hirer  of  a  horse, 
ance,  2  Har.  &  Gill,  316.  e  Stevens   f.    Armstrong,   6  N.   Y. 

690 


CHAP.  IV.]  EIGHTS,  ETC.,  OF   THE   MASTER.  §  492 

It  lias  been  ruled  that  a  servant  could  have  no  implied 
authority  to  do  that  which  it  would  not  be  lawful,  under  any 
circumstances,  for  either  him  or  his  employer  to  do.^  Nor, 
on  n-eneral  principles,  is  the  master  liable  if  the  person  in- 
jured was  not  in  the  exercise  of  ordinary  care  at  the  time  of 
the  injury,  and  so  aided  in  effect  in  bringing  on  his  suftering.2 
Many  decisions  indicate  the  doctrine  that  for  wilful  acts  of 
the  servant  the  master  is  not  responsible  ;  but  this  exemption 
usually  seems  to  rest  in  reality  upon  the  ground  that  the  acts 
complained  of  were  not  done  in  the  course  and  scope  of  the 
servant's  employment.^  To  apply  these  and  analogous  rules 
is  not  easy.  After  all,  the  principle  of  scope  of  the  ser- 
vant's employment  seems  best  to  explain  the  extent  of  the 
master's  liability  for  his  tort ;  and  the  American  cases  appear 
to  have  brought  it  to  bear,  whatever  the  nature  of  the  injury, 
and  however  difficult  it  might  sometimes  be  found  to  apply 
the  principle  understandingly  to  a  particular  state  of  facts.^ 

§  492.  Master's  Responsibility  for  Tort  to  his  own  Servants; 
Exception  as  to  Fellow-Servants,  &c.  —  An  exception  to  the  mas- 
ter's responsibility  for  the  tortious  acts  of  his  servant  is  found 
in  the  rule,  now  well  settled  in  England  and  America,  that  a 
master  is  not  in  general  responsible  to  his  own  servant  for 
any  injury  which  the  latter  may  sustain  through  the  negli- 
gence or  wrongful  act  of  a  fellow-servant,  unless  the  master 
has  been  negligent  in  Iiis  selection  or  retention  of  the  ser- 
vant at  fault.^  The  application  of  this  rule  is  usually  to  rail- 
way companies  and    other    common    carriers,    not   often    to 

435  ;  Yates  v.  Squires,   19   Iowa,   26  ;  ligence,  72  ;  Mott  v.  Consumers'  Ice  Co., 

Little  Miami  R.  R.  Co.  v.  Wetmore,  19  73  N.  Y.  543  ;  Snyder  v.  Hannibal  R.,  69 

Oliio  St.  110.  Mo.  413. 

1  Poulton  V.  South-Western  R.  R.  s  Smith  Mast.  fcServ.  187  ;  Priestley 
Co.,  L.  R.  2  Q.  B.  534.  See  Russell  v.  v.  Fowler,  3  M.  &  W.  1 ;  Ilutoliinson  v. 
Irby,  13  Ala.  131.  York,  &c.  R.  R.  Co.,  5  Exch.  343 ;  Far- 

2  Smith  Mast.  &  Serv.  161 ;  Butter-  well  v.  Boston  &  Worcester  R,  R.  Co., 
field  V.  Forrester,  11  East,  60;  Illinois  4  Met.  49;  BartonshillCoal  Co.  i-.  Reid, 
C.  R.  R.  Co.  V.  Baches,  55  111.  379.  3  Macq.  H.  L.  2G6  ;  Abrani  v.  Reynolds, 

3  See  Shearm.  &  Redf.  Negligence,  5  Hurl.  &  Nor.  143 ;  Shearm.  &  Redf. 
73  ;  Harris  v.  Nicholas,  5  Munf.  483  ;  Negligence,  101,  and  cases  cited  ;  Sher- 
Moore  v.  Sanborne,  2  Mich.  519;  man  v.  Rochester  R.  R.  Co.,  17  N.  Y. 
Wright  V.  Wilcox,  19  Wend.  343.  153 ;  Chapman  v.  Erie  R.,  55  N.  Y.  579. 

4  See  further,  Shearm.  &  Redf.  Neg- 

691 


§492 


THE   DOMESTIC    RELATIONS. 


[part  VI. 


domestic  servants  ;  but  all  who  occupy  the  relation  of  master 
and  servant  come  within  its  scope. ^  The  converse  of  our 
rule  holds  good  ;  namely,  that  the  master  is  responsible  for 
the  injury  sustained  by  a  servant  through  the  negligence  or 
misconduct  of  a  fellow-servant,  as  for  an  injury  committed 
by  himself,  where  he  was  negligent  in  selecting  the  fellow- 
servant,  or  in  continuing  him  in  employment  after  that  fellow- 
servant  proved  incompetent.^  It  might  be  a  question  whether 
the  master  is  not  in  such  cases  held  responsible,  as  substan- 
tially the  party  whose  negligence  caused  or  contributed  to  the 
injury ;  if  so,  this  principle  could  be  pushed  still  further.^ 

So  it  is  held  on  like  grounds,  irrespective  of  the  question 
of  fellow-servants,  that  a  master  is  not  liable  to  his  servant 
for  any  defects  in  the  materials  furnished  to  the  latter  for 
use  in  the  master's  service,  unless  he  was  negligent  in  pro- 
viding such  materials  or  in  pointing  out  their  defects.'*  Nor 
for  injuries  caused  his  servant  by  latent  defects  in  the  struc- 
tures of  employment  where   he   had  aj^pointed  suitable  in- 


1  See  Wilson  v.  Merry,  L.  R.  1  Sc. 
App.  326;  Felch  v.  Allen,  98  Mass. 
572;  Durgin  v.  Munson,  9  Allen,  396 ; 
Hoben  v.  Burlington,  &c.  R.  K.  Co.,  20 
Iowa,  562. 

2  Weger  v.  Penn.  R.  R.  Co.,  55  Penn. 
St.  460;  McMahon  v.  Davidson,  12 
Minn.  357.  See  Chicago,  &c.  R.  R. 
Co.  V.  Jackson,  55  111.  492.  Where  the 
injur}-  to  an  inferior  servant  was  caused 
by  the  negligence  of  a  superior  ser- 
vant, placed  in  some  sort  of  charge  by 
the  common  master,  this  rule  applies  as 
well  as  though  they  were  equal  and  per- 
forming the  same  work.  Berea  Stone 
Co.  V.  Kraft,  31  Ohio  St.  287  ;  Lehigh 
Valley  Co.  v.  Jones,  86  Penn.  St.  432  ; 
Howells  V.  Landore  Steel  Co.,  L.  R.  10 
Q.  B.  62.  In  fact  a  "  fellow-servant," 
within  the  meaning  of  the  rule  of  our 
text,  is  usually  understood  to  be  any 
one  serving  the  same  master,  and  un- 
der his  control,  whether  equal,  inferior, 
or  superior  to  the  injured  person  in  his 
grade  or  standing.  Faulkner  i'.  Erie  R. 
R.  Co.,  49  Barb.  324  ;  Shearni.  &  Redf 
Negligence,  115 ;  Feltham  v.  England,  L. 
R.  2  Q.  B.  .33  ;  Wigmore  v.  Jay,  5  Exch. 

692 


354 ;  Shanck  v.  Northern,  &c.  R.  R.  Co  , 
25  Md.  462  ;  Murray  v.  Currie,  L.  R.  6 
C.  P.  24  ;  Mc  Andrews  v.  Burns,  39  N.J. 
L.  117.  Where  the  superior  servant's 
direction  was  outside  his  own  scope 
of  authority,  other  considerations  ap- 
ply. Railroad  Co.  v.  Fort,  17  Wall.  558. 
But  in  some  States  this  rule  appears 
to  be  rela.\ed  somewhat  for  the  in- 
jured servant's  benefit.  Louisville  & 
Nashville  R.  R.  Co.  v.  Collins,  2  Duv. 
114  ;  Little  Miami  R.  R.  Co.  v.  Stevens 
20  Ohio,  415.  But  a  master  who  in- 
jures his  own  servant  cannot  claim  im- 
munity as  a  "fellow-servant,"  though 
joining  in  the  work.  Ashworth  v.  Stan- 
wi.x,  3  El.  &  El.  701 ;  Wilson  v.  Merry, 
L.  R.  1  Sc.  App.  326.  Of  course,  the 
mere  fact  that  two  persons  are  engaged 
in  ministering  to  the  w-ants  of  one  in- 
dividual does  not  make  them  neces- 
sarily fellow-servants. 

3  See  Davis  v.  Detroit,  &c.  R.  R. 
Co.,  20  Mich.  105. 

4  Shearm.  &  Redf.  Negligence,  103, 
and  cases  cited ;  Hayden  v.  Smithville, 
&c.,  Co.,  29  Conn.  548. 


CHAP.  IV.]  RIGHTS,  ETC.,  OF   THE  MASTER. 


§492 


spectors  who  failed  to  discover  and  report  them,  and  he 
received  no  other  information  that  the  defects  in  fact  existed.^ 
In  short,  ordinary  care  and  diligence  on  his  part  will  protect 
the  master  from  liability  to  his  own  servants ;  and  ordinary 
care  is  usually  presumed  to  exist  in  absence  of  proof  to  the 
contrary .2  But  for  his  own  negligence,  on  the  other  hand, 
a  master  is  liable  to  his  own  servant  as  to  any  one  else ;  that 
is  to  say,  provided  the  servant  exercised  ordinary  care,^  and 
not  otherwise.  Though  not  a  guarantor,*  it  is  incumbent 
upon  the  master  to  use  ordinary  care  in  selection  of  servants,^ 
and  in  the  procurement  of  materials,  and  in  keeping  the  prem- 
ises of  usual  employment  in  repair  and  safe  condition,^  and  in 
remedying  defects  which  are  brought  to  his  notice.'^  But  a 
master  does  not  insure  his  servant  against  accidents,^  nor  the 
result  of  the  servant's  own  risks  or  carelessness.  Peculiar 
terms  of  the  employment  have  a  bearing  uj)on  such  issues.^ 


1  Warner  v.  Erie  R.  R.  Co.,  39  N.  Y. 
468.  But  see  Chicago,  &c.  R.  R.  Co. 
i;.  Jackson,  55  Til.  492 ;  Paulmier  v. 
Erie  R.  R.  Co.,  34  N.  J.  L.  151.  Where 
the  master  employs  persons  who  are  to 
furnish  each  his  own  tools  or  appli- 
ances, he  is  not  answerable  for  defects 
in  such  tools  or  appliances.  Harkins  v. 
Sugar  Refinery,  122  Mass.  400. 

2  Shearm.  &  Redf.  104 ;  Roberts  v. 
Smith,  2  Hurl.  &  Nor.  213;  Brydon  v. 
Stewart,  2  Macq.  H.  L.  30;  Cayzer 
V.  Taylor,  10  Gray,  274 ;  Ashworth  v. 
Stanwix,  3  El.  &  El.  701;  Johnson  v. 
Bruner,  61  Penn.  St.  58. 

8  Chicago  R.  v.  Donahue,  75  111. 
106. 

4  Hough  V.  Texas  R.,  100  U.  S.  Supr. 
213. 

6  Oilman  v.  Eastern  R.  R.  Co.,  10 
Allen,  233  ;  Faulkner  v.  Erie  R.  R.  Co., 
49  Barb.  324 ;  Moss  v.  Pacific  R.  R.  Co., 
49  Mo.  167.  The  English  statement  of 
the  rule  is  that  "negligence  cannot  ex- 
ist if  the  master  does  his  best  to  employ 
competent  persons;  he  cannot  warrant 
the  competency  ot  his  servants."  Tar- 
rant V.  Webb,  25  Law  J.  n.  s.  C.  P. 
203.  The  master  cannot  delegate  his 
responsibility  so  as  to  divest  himself  of 


the  necessity  of  using  ordinary  care. 
See  Fuller  v.  Jewett,  80  N.  Y.  46. 

6  Ryan  v.  Fowler,  24  N.  Y.  410 ; 
Williams  j».  Clough,  3  Hurl.  &  Nor.  258; 
Buzzell  V.  Laconia,  &c.  Co.,  48  Me.  113; 
AUerton  Packing  Co.  w.Egan,  86  111.  253 ; 
Fairbank  v.  Haentzsche,  73  111.  2.36. 

7  Perry  v.  Ricketts,  55  III.  234.  And 
this  liability  for  his  own  negligence 
would  appear  to  apply  in  some  cases 
where  a  fellow-servant  contributed  to 
the  injury.  Paulmier  v.  Erie  R.  R.  Co., 
34  N.  J.  L.  151. 

^  Flynn  !•.  Beebe,  98  Mass.  575,  per 
Hoar,  J.  See  also  Marshall  v.  Stewart, 
2  Macq.  Ho.  Lords,  30,  33,  E.  L.  &  Eq.  1. 

9  Wliere  the  servant  knows  his  mas- 
ter's rules  and  violates  them,  it  is  held 
that  he  must  suffer  the  consequences; 
for  of  the  reasonableness  of  the  rule  his 
master  must  be  the  sole  judge.  Wol- 
sey  V.  Lake  Shore  R.,  33  Ohio  St.  227. 
It  seems  to  the  present  writer,  how- 
ever, that  if  the  servant  showed  that 
he  exercised  ordinary  care  he  ought  to 
recover,  though  even  in  the  act  of  trans- 
gressing an  unreasonable  rule  of  his 
emploj'er.  See  dissenting  opinions  in 
Wolsey  V.  Lake  Shore  R.,  supra.  As 
to  warning  a  cliild   or  inexperienced 

693 


§  493         *  THE   DOMESTIC   RELATIONS.  [PART   VI. 

The  rule  that  a  master  is  not  responsible  to  one  servant  for 
the  negligence  of  a  fellow-servant  applies  to  the  case  of  a  per- 
son who  is  injured  while  voluntarily  assisting  the  servant.  A 
guest,  a  friend,  a  relative,  any  one  engaged  in  the  same  com- 
mon work,  comes  within  the  principl'=".i 

§  493.  Master  not  Criminally  Responsible  for  Servant,  but 
only  for  himself.  —  As  a  general  rule,  the  master  is  not  crim- 
inally liable  for  the  acts  of  his  servants,  unless  he  expressly 
command  or  personally  co-operate  in  them.  Each  offender 
against  public  justice  must  answer  for  himself.^  Where  one, 
however,  procures  innocent  agents  to  do  acts  amounting  to  a 
felony,  the  employer,  and  not  the  innocent  agent,  is  held  ac- 
countable ;  for  this  is  his  own  act.^  As  to  penalties,  the  rule 
in  this  country  is  sometimes  understood  to  be  the  same.'^  Yet, 
penal  actions  in  general  have  more  the  character  of  civil  suits 
then  of  criminal  proceedings ;  and,  under  the  revenue  laws, 
penalties  are  frequently  imposed  upon  the  master.^  So  again 
are  masters  indicted  for  public  nuisances  committed  by  their 
servants,^  according  to  the  English  rule.  Some  of  the  pro- 
ceedings authorized  by  statute  against  corporations  in  this 
country  for  damages  caused  by  the  negligence  of  their  ser- 
vants will  be  found  to  contain  a  like  principle.'^ 

person  against  the  dangers  of  the  task  Hammersley,  28  Ind.  371;   Stewart  v. 

committed  to  him,  see  Sullivan  v.  In-  Harvard  College,  12  Allen,  58;    Wash- 

dia  Man.  Co.,  113  Mass.  396;  O'Connor  burn   v.  Nashville,   &c.   R.  R.  Co.,  3 

V.  Adams,  120  Mass.  427 ;  Hill  v.  Gust,  Head,   638.      For   the    case    where   a 

55  Ind.  45.  servant,  not  authorized  to  do  so,  gets 

A  servant  not  apparently  unfit  for  another  to  lielp  him  in  his  work,  see 

hazardous  duties,  and  accepting  such  Jewell  i'.  Grand  Trunk  R.,  55  N.  H.  84. 
an   employment,   takes   upon   himself  -Smith  Mast.  &  Serv.  148;    Story 

the    natural    risks     of    that    service.  Agency,  §  452 ;  Rex  t'.  Huggins,  2  Ld. 

Howd   V.  Miss.    Central   R.,  50  Miss.  Raym.  1574  ;  Sloan  r.  State,  8  Ind.  312. 
178;  Gibson  r.  Erie  R.  63  N.  Y.  449;  »  Reg.  v.  Bleasdale,  2  Car.  &  K.  165. 

Pennsylvania  R.  v.  Lynch,  90  111.  333.  4  Deerfield  v.  Delano,  1  Pick.  465 : 

This  doctrine  is  applied  to  the  case  of  Goodhue  v.  Dix,  2  Graj',  181. 
a  minor.     De  Graff  v.  N.  Y.  Central  R.,  &  See  Smith  Mast.  &  Serv.  145-147  ; 

76  N.  Y.  125.     Sed  qu.  if  the  minor  was  Attorney-General  v.  Siddon,  1  Cr.  &  J. 

obviously  unfit  to  be  employed  in  such  220 ;   Atcheson  v.  Everitt,  Cowp.  391. 
dangerous  service.  ^  1  Bl.  Com.  431,  432 ;   Turberville 

1  Degg  V.  Midland  R.  R.  Co.,  40  E.  L.  v.  Stampe,  1  Ld.  Raym.  2G4. 
&  Eq.  .376;  Potter  v.  Faulkner,  1  Best  ^  For  further  discussion  of  the  broad 

&    Smith,  800  ;    Althorf  v.  Wolfe,  22  principles  underlying  a  master's  liabil- 

N.  Y.  355;    Abraham  v.  Reynolds,  5  ity  for  the  negligence  of  his  servants, 

Hurl.  &  Nor.  143 ;  Ohio,  &c.  R.  R.  Co.  y.  as  illustrated  in  the   modern  English 

694 


CHAP.  IV.]  RIGHTS,  ETC.,  OF   THE   MASTER.  §  494: 

§  494.  Final  Observations  on  Law  of  Domestic  Servants.  — 
The  foregoing  brief  statement  of  doctrines  concerning  the 
law  of  master  and  servant  may  suffice  for  the  present  treatise 
in  its  limited  space  and  scope.  To  enter  upon  the  law  further, 
or  to  attempt  an  analysis  of  the  numerous  and  conflicting 
cases  which  constantly  arise  at  the  present  day  under  what 
might  be  called  the  analogies  of  master  and  servant,  would  be 
at  present  impossible.  We  trust  in  time  to  see  the  topic  of 
"  master  and  servant "  confined  to  its  legitimate  and  proper 
limits,  as  one  of  the  domestic  relations,  and  some  new  and 
more  comprehensive  title  applied  to  such  decisions  as  clearly 
affect  mankind  in  the  external  concerns  of  life. 

and  American  case?,  the  reader  is  re-  Master  &  Servant.  The  decisions  which 

ferred  to  such  general  works  as  Shear-  relate  to  domestic  service  constitute  a 

man  and  Redfield  on  Negligence ;  Story  very  small  proportion  of  those  which 

or  Wharton  on  Agency,  and  Wood  on  properly  belong  to  this  head. 

695 


INDEX. 


INDEX. 


A. 

Section 

ABANDONMEXT, 

gives  wife  rights  as  feme  sole 219 

ABDUCTIOX, 

of  child 260 

ACCOUNTS, 

of  guardian  in  English  chancery  practice 371 

distinction  between  final  and  intermediate  accounts      .     .     .     372 

practice  in  the  United  States 372-37-4 

items  allowed  the  guardian 374 

compensation  of  guardians 375 

ACTIONS,  —  Hiusbcmd  and  Wife. 

for  enticement 41 

breach  of  marital  obligations 48 

on  wife's  antenuptial  debts 57 

with  reference  to  wife's  torts 75-79,  170,  n. 

as  to  wife's  separate  estate 158 

as  to  wife's  separate  trade 169 

wife's  modern  right  to  sue,  &c 170,  n. 

where  wife  is  abandoned  by  husband 219 

Parent  and  Child. 

parent  for  child's  services 252 

per  quod  for  child's  injuries,  seduction,  &c 257,  260 

as  to  illegitimate  children 279,  281 

as  between  parent  and  child 275 

Guardian  and  Ward. 

by  guardian  on  behalf  of  ward 843  &  n. 

guardians  sued  on  their  bonds 376 

ward's  suit  against  guardian 381 

ward's  action  of  account      .     .     .     .     „ 382 

Infancy. 
suits  must  be  brought  by  guardian  or  prochein  ami    .     .     .     .     449 
infants  cannot  sue  by  attorney  or  in  person 449 


700  INDEX. 

Section 

ACTIO'NS  — continued, 

how  the  prochein  ami  is  appointed 450 

his  liabilities,  costs,  &c 450 

infants  must  defend  by  guardian  only 451 

guardians  ad  litetn 451 

matters  of  practice 451,  452 

chancery  proceedings  are  similar 452 

binding  effect  of  decree  or  judgment  upon  infant     ....     453 
See  also  Master  and  Servant  ;  Torts. 

ADMINISTRATION, 

on  estate  of  deceased  wife 196 

on  estate  of  deceased  husband 204 

See  Death. 

durante  minore  estate 325 

See  Executor  and  Administrator. 

ADOPTION, 

of  children 232,  273 

ADULTERY, 

effect  on  wife's  necessaries 66 

ADVANCEMENT, 

from  parent  to  child 272 

AFFINITY, 

marriage  disqualification  of 16 

AGENCY, 

wife's  contract;  necessaries 61 

of  wife  for  husband 60,  72 

of  husband  for  wife  in  separate  property 153-155 

of  wife  after  husband's  death 212 

of  child 241 

of  guardians 346 

See  Contract. 

ALIENAGE, 

of  either  spouse 39,  222,  n 

ANTENUPTIAL   DEBTS, 

of  wife,  husband's  liability  at  common  law  ;   liability  only 

while  coverture  lasts 56 

where  wife  was  infant 56 

effect  where  wife  survives  husband 56 

strictly  legal  demands;  admissions  by  either  spouse       ...       57 

actions;  judgment,  &c 57 

of  antenuptial  contract ;  special  contract,  &c 57 

under  separate  use 109,  128 

statute  changes 170  n. 

on  death 198,  199 

ANTENUPTIAL   SETTLEMENTS 171,  173 

See  Settlements. 

ANTICIPATION, 

clause  of  restraint  upon 110,  129,  139 

See  Separate  Property. 


INDEX.  701 

Section 

APPOINTMENT, 

power  of,  in  married  women 136  a. 

of  guardians  — 

guardians  of  infants  generally  appointed 297 

but  not  natural  and  socage  guardians;  authority  under  law    .     298 

testamentary  guardians  appointed  by  parent 299 

what  language  suffices  as 299 

extent  of  power  of  appointment  and  authority 300 

whether  infant  can  appoint 301 

rule  as  to  illegitimate  children 282 

chancery  and  probate  guardians  judicially  appointed     .     .     .     302 

what  tribunal  exercises  jurisdiction  and  when 303 

what  person  is  selected  as  guardian 304 

leading  considerations 304,  305 

appointment  of  married  women  and  non-residents    ....     306 

method  of  appointment 307 

effect  of  chancery  or  probate  appointment 308 

civil-law  principles 309 

liability  after  appointment,  before  qualification 326 

APPRENTICE, 

whether  guardian  may  bind  out  ward 335 

legislation  in  England  and  America 457 

mutual  rights  and  duties  of  master  and  apprentice  .     .  457  n. ,  487 

ASSAULT   AND   BATTERY, 

of  husband  or  wife 48,  77 

as  to  master  and  servant 479 


B. 

BANKRUPTCY, 

in  wife's  separate  trade 163,  169 

as  affecting  voluntary  settlements 186 

BASTARDS 276-282 

See  Illegitimate  Children. 

BIGAMY 21 

BOND,  —  of  guardians, 

English  practice;  receiver's  duties 365 

American  rule  as  to  probate  and  other  guardians      ....     366 

liability  of  sureties 367 

general  principles  applicable  to  bonds 367,  368 

suits  on  probate  bonds 367,  368,  376 

enforcement  of  sureties'  liability 368,  376 

indemnity  of  sureties 368,  376 

special  bond  in  sales  of  real  estate 369 


702  INDEX. 

c. 

Section 

CHASTISEMENT, 

right  of,  in  a  husband,  parent,  or  master    ....     44,  244,  467 

CHATTELS   REAL   OF   WIFE, 

effect  of  coverture ;  husband's  interest 87,  88 

his  right  to  alienate 88 

acts  defeating  wife's  rights 88 

survivorship  of  wife 88 

CHILDREN, 

parental  custody  of 47 

custody  of,  under  separation  deed 218,  n. 

legitimate  children  in  general 223  el  seq. 

See  Legitimacy. 

agency  of  child  for  necessaries 241 

whether  there  is  implied  authority ;  agency 241 

agency  in  general  transactions 241 

liability  for  injuries 262 

duties  of  children  to  parents 264 

extent  of  obligation  to  maintain;  Stat.  Eliz.,  &c 265 

rights  of,  in  general 266 

right  of  child  to  his  earnings;  emancipation 267 

See  Earnings;  Emancipation. 

full-grown  children  remaining  at  home 269 

gifts  and  transactions  between  parent  and  child  ....  270,  271 

advancements ;  sale  of  expectant  estates  by  heir 272 

legacies  of  children ;  rights  by  descent  and  distribution     .     .     272 
stepchildren;  quasi  relation  of  parent  and  child        237,  239,  261,  273 

claims  against  the  parental  estate 274 

suit  between  child  and  parent 275 

illegitimate  children  (see  Illegitimate  Children)    .     .     .     276 
See  also  Custody;  Infants;  Parent. 

CHOSES, 

of  wife  in  possession  or  action 82 

See  Personal  Property  of  Wife. 

CIVIL  LAW, 

theory  of  marriage  and  property 6 

COLOR, 

as  marriage  disqualification 17 

COMMUNITY 7 

CONFLICT   OF   LAWS, 

relative  to  marriage,  marital  property  rights,  and  divorce      222,  n. 

as  to  domicile  of  child 231 

as  to  legitimacy 231 

as  to  ward's  person 327,  328 

as  to  ward's  property 329 

as  to  age  of  majority 393 


INDEX.  703 

Section 
CONSANGUINITY, 

marriage  disqualification  of 16 

CONSTITUTION, 

questions  as  to  maiTiage  relation 31,  114 

question  under,  as  to  legitimacy 229 

as  to  acts  interfering  with  parental  rights  and  duties     .     .     .  256 

as  to  matters  of  guardianship 330 

CONTRACT, 

of  tvife  under  coveiiure  ov  common-law  doctrine 58 

of  wife,  general  coverture  disability 58 

contracts  void  at  common  law 58 

disability  illustrated 58 

disability  extends  beyond  death  of  spouse  or  divorce      ...  59 

wife  hinds  husband  as  agent ;  effect  of  his  assent  or  joinder  ...  60 

jj'jye'A' nece.s's«77es;  foundation  of  husband's  obligation  .     ...  61 

wife  may  pledge  husband's  credit 61 

what  are  such 61 

what  are  not  such 61 

tvi/e^s  necessaries  :  (1)  licing  together  ;  or  (2)  separate    ....  62 

(1)  presumption  from  cohabitation ;  husband's  permission  .  63 
wife's  agency  controlled  by  fact  of  husband's  supply  ...  63 
wife's  unauthorized  purchase  may  be  ratified;    assent   and 

dissent 61 

wife's  necessaries  supplied  upon  wife's  or  third  person's  credit  64 

wife's  necessaries  where  husband  neglects  to  supply      ...  65 

(2)  where  spouses  live  apart 66 

wife's  reasons  for  leaving  husband;  return 66 

where  spouses  live  apart  and  wife  commits  adultery       ...  66 

wife's  necessaries;  effect  of  receiving  wife  back 67 

when  spouses  live  apart,  binding  wife  herself     ....  67 

one  spouse  being  in  asylum  or  prison 67 

in  case  of  voluntary  separation ;  allowance 68 

legalized  separation,  and  alimony 68 

presumptions  when  spouses  live  apart;  rule  of  good  faith  09 

modern  rule  summed  up 70 

marriage  reputed  or  de  facto 71 

where  one  spouse  is  a  minor 71 

family  necessaries;  children;  relatives 71 

wife's  necessaries;  parental  claims 71 

wife's  own  claims  for  necessaries;  raising  funds,  &c.     ...  71 

wife's  necessaries;  leading  elements;  partial  claims      ...  71 

wife^ s  general  agencij  for  her  husband 72 

ratification,  &c 72 

effect  of  creditor's  marriage  with  debtor 73 

changes  under  married  women's  acts 170,  n. 

general  transactions  between  husband  and  loife 191 

See  Husband  and  Wife. 

of  wife  after  husband's  death 212 

See  Death. 


704  INDEX. 

Section 
CONCILIATION,  COUNCILS  OF.     See  Workmen     ....    456 

CONVERSION, 

of  ward's  estate 355 

CONVEYANCE, 

of  wife's  lands 90,  94 

husband's  joinder 133,  150 

from  one  spouse  to  another 192 

to  husband  and  wife ;  its  effect 193 

See  Real  Estate  of  Wife. 
COVERTURE, 

general  principles  of  old  law 4-10 

affecting  private  wrongs  and  public  wrongs 49 

general  inequalities  of  old  law  stated 54 

what  each  spouse  yields  as  to  property 54 

husband's  liability  for  wife's  contracts  ;  wife's  immunity       .       54 

wife's  immunity,  &c.,  as  to  torts 54 

when  wife  is  treated  as  feme  sole 55 

husband  liable  for  wife's  antenuptial  debts 56,  57 

See  Antenuptial  Debts. 

wife's  disability  to  contract 58 

See  Contract. 
effect  upon  wife's  injuries,  and  frauds  committed  upon  or  by 

her 74 

See  Torts. 

effect  upon  wife's  personal  property 80  e<  seq. 

See  Personal  Property  of  Wife. 

effect  upon  wife's  chattels  real,  leases,  &o 87,  88 

See  Chattels  Real  of  Wife. 

effect  upon  wife's  real  estate 89-99 

See  Real  Estate  of  Wife. 
CRIMES, 

of  husband  or  wife ;  coercion,  «&c 49 

against  property 51 

of  one  spouse  affecting  the  other 170,  n. 

of  parent 244 

of  infant  .  • 395 

infant  as  criminal  prosecutor 396 

of  servant 484,  493 

CURTESY, 

its  nature  and  incidents 202 

CUSTODY, 

of  children,  common-law  rule 245 

mother's  rights  disregarded  at  common  law     ....       245,  333 
chancery  jurisdiction  ;  common  law  overruled  ....     246 

on  what  grounds  the  English  chancery  court  interferes      •     .     246 

common-law  courts  interfere  on  habeas  corpus 246,  n. 

Justice  Talfourd's  act;  English  rule 247 

doctrine  of  custody  in  the  United  States 248 


INDEX.  705 

Section 
CUSTODY  —  continued, 

child's  welfare  the  primary  object 248 

custody  under  divorce  and  other  statutes 249 

child's  wishes  sometimes  regarded 250 

agreements  to  transfer  custody 251 

guardian's  right  of  custody 332,  333 


D. 

DEATH, 

of  spouse,  effect  on  wife's  antenuptial  debts 56 

as  to  wife's  contract  disability 59 

survival  of  action  for  damages  to  wife 77 

effect  upon  wife's  personal  property 80 

coverture;  effect  on  wife's  chattels  real;  survivorship    .     .      87,88 

coverture,  effect  on  wife's  real  estate 89,  9(5 

effect  on  wife's  separate  estate 107 

affecting  continuance  of  separate  estate 107,  127 

widowhood  and  remarriage  as  to  separate  use  ....       107,  127 
survivor's  rights  controlled  by  antenuptial  settlement   .     .    183,  ?;. 
dissolution  of  marriage  relation  by :  (1)  husband  as  survivor. 

husband's  common-law  right  to  administer 19G 

purposes  of  husband's  administration;  assets  for  his  creditors  197 

husband's  survivorship  affecting  M'ife's  personalty     ....  198 

administration  for  his  own  benefit 198 

husband  bound  to  bury  wife;  his  wishes  respected  ....  199 

husband's  personal  liability  for  deceased  wife's  debts,  &c.       .  199 

death  pending  settlement  of  deceased  wife's  estate  200 

death  of  female  administratrix  leaving  a  husband    ....  200 

husband's  freehold  by  marriage  in  wife's  real  estate      .     .     .  201 

husband's  enlarged  freehold  as  tenant  by  curtesy      ....  202 

abatement  of  real-estate  suits  by  death 203 

surviving  husband's  claims  against  wife's  real  estate     .     .     .  203 
(2)  ici/e  as  survivor. 

widow's  rights  of  administration 204 

distributive  share 205 

waiver  of  provision  under  husband's  will     ....  206 

allowance 207 

paraphernalia 208 

■wife's  letters  belong  to  her 208,  n. 

widow's  equity  of  redemption  of  mortgage 209 

exoneration 209 

controversies  with  administrator 210 

right  and  duty  to  bury  husband 211 

wife's  agency  for  husband  after  his  death 212 

rights  in  deceased  husband's  real  estate 213 

dower  and  curtesy  compared 213 

homestead  system 214 

45 


706  INDEX. 

Section 

DEATH  —  continued, 

wills  of  married  women 203,  n. 

effect  of  divorce 221,  222 

DEBT.    See  Antenuptial  Debts;  Contract. 

DESERTION, 

as  a  breach  of  the  duty  of  spouses 36 

DIVORCE, 

in  connection  with  annulling  marriage 19 

impediments  following 22 

effect  on  wife's  contract  disability 59 

costs,  fees,  &c.,  whether  necessaries 61 

as  to  wife's  necessaries 68 

effect  upon  husband's  suit  for  loss  of  wife's  services      ...       77 

effect  upon  wife's  personal  property 80 

effect  on  wife's  real  estate  and  coverture  rights     ....      89,  96 

whether  separation  deed  bars 218,  n. 

divorce  legislation  in  general 220 

effect  of  absolute  divorce  upon  property  rights 221 

effect  of  partial  divorce  upon  property  rights 222 

conflict  of  laws  in  divorce 222,  n. 

DOMESTIC   RELATIONS, 

defined  and  classified 1,  2 

its  leading  topics 1,2 

classification  by  other  writers 1 

antiquity  of  the  law 3 

its  supremacy 3 

universal  in  its  scope 3 

See  Husband  and  Wife  ;   Guardianship  ;  Master  and  Servant  ; 
Parent  and  Child. 

DOMICILE, 

assigned  by  law  to  every  one 3 

the  matrimonial 37 

relative  to  alien  and  citizen 39 

in  conflict  of  laws 222,  n. 

of  children 230 

guardian's  right  to  change  it 334 

See  Conflict  of  Laws. 

DOWER, 

its  nature  and  incidents 218 

guardian  may  assign  ward's  dower 350 

DRUNKENNESS  (or  INTOXICATION), 

marriage  disqualification  of 18 


E. 

EARNINGS, 

of  wife  at  common  law 81 

under  modern  equity  and  statutes 162 


INDEX.  707 

Section 
EARNINGS  —  continued, 

rule  with  statutory  changes 162 

apart  from  statute 162 

gift  of,  in  wife's  favor 162 

where  husband  deserts  or  neglects 162 

q/"  minor  c/a7(//-en  belong  to  parent 252 

the  rule  limited  in  practice 252  a 

parent  may  sue  for  earnings 252 

may  relinquish  right 252  a 

prize-money,  pay,  seaman's  wages,  &c 252  a 

mother's  rights  to  child's  services  and  earnings 254 

o/ ?(?«?•(•/ do  not  belong  to  guardian 335 

of  infant;  his  contract  of  service  construed 421 

whether  money  is  due  when  infant  avoids  it 421 

of  servant 472,  488 

See  Emancipatiox  ;  Pin-moxey  ;  Trade. 

EDUCATION, 

parents  should  educate  children 235 

questions  under  father's  will ;  religious  education     ....  235 

jurisdiction  and  practice  of  chancery  in  such  matters     .     .     .  235 

parent's  right  where  child  is  excluded  from  school    ....  235 

as  to  guardian  and  ward 340 

as  to  master  and  servant 467 

EMANCIPATION, 

of  children  by  the  parent 253,  267 

how  emancipation  is  effected 267  a 

by  indenture  and  parol 267  a 

emancipation  must  be  proved 267  a 

emancipation  by  abandonment  or  marriage      ....    260,  267  a 

effect  of  emancipation 268 

earnings  of  child  then  belong  to  him 268 

emancipation  on  arriving  at  full  age 269 

full-grown  children  may  remain  at  home 269,  421 

their  rights  and  duties  in  such  case 269 

legislative  emancipation 392 

ENLISTMENT, 

infant's  contract 419 

ENTICEMENT, 

of  wife 41 

of  child 260 

of  sei-vant 487 

EQUITY,   WIFE'S 

to  settlement 85 

EQUITY, 

modifying  coverture 100  et  seq. 

See  Separate  Property. 


708  INDEX. 

Section 

EVIDEXCE, 

husband  and  wife  disqualified  as  witnesses 53 

exceptions  to  rule 53 

capacity  of  infants  to  testify 398 

servants  may  be  witnesses 480 

EXECUTOR   AXD   ADMINISTRATOR, 

wife  as  executrix,  &c 86 

husband  of  female  executrix,  &c 86 

EXONERATION, 

wife's  right 209 


F. 

FORCE, 

in  mamage 23,  24 

FRAUD, 

in  marriage 23,  24,  76,  77,  183 

See  Torts. 

FRAUDS,    STATUTE  OF, 

as  to  settlements , 172,  179 

applied  to  guardian's  promise 345 

applied  to  contract  of  hiring  a  servant 459 


G. 

GIFTS, 

in  restraint  of  marriage 32 

to  husband  or  M'ife,  or  both 189,  193  n. 

between  husband  and  wife,  or  postnuptial  settlements  .     .     .  184 

between  parent  and  child 270 

See  Guardian;  Infants;  Settlements. 

GOVERNMENT 

not  liable  for  torts  of  servants 483 

GUARDIAN, 

consent  of,  to  marriage 30 

marriage  with  female  guardian,  its  effect 86 

effect  of  female  guardian's  marriage 318 

rights  and  duties  of  socage  guardian 320 

rights  and  duties  of  testamentary  guardian 320 

nature  of  guardian's  estate ;  whether  a  trustee 321 

authority  over  person  and  estate 320 

chancery  and  probate  control  of  ward's  property  contrasted    .  323 

joint  guardians 322 

guardian  holding  other  trusts 324,  373 

cannot  blend  distinct  trust 324 

where  legacy  is  left  to  an  infant 324 

administrator  durante  minore  (elate 325 


INDEX.  709 

Section 
GUARDIAN  —  continued, 

quasi  guardianship  where  no  regular  appointment     ....     326 

rights  as  to  ward's  person 331 

guardian's  right  of  custody 332,  333 

rule  as  between  guardian  and  parent ;  mother's  rights  .       332,  333 

whether  guardian  may  change  ward's  domicile 334 

or  carry  ward  beyond  the  jurisdiction 334 

guardian  cannot  claim  ward's  personal  services 335 

other  rights  relating  to  ward's  person 335 

duties  as  to  icard's  person 336 

general  rule  of  protection,  education,  and  maintenance      .     .     337 

guardian  not  bound  to  expend  his  own  fortunes 337 

when  he  incurs  personal  liability 337 

appropriation  of  ward's  property  for  his  support 337 

when  income  may  be  exceeded 338 

allowance  to  parent  for  ward's  support 339 

maintenance  in  chancery 338,  339 

guardian's  right  to  control  ward's  education 340 

rights  and  duties  as  to  ward's  estate 341 

general  rules  of  management 341,  342 

right  to  sue  and  arbitrate 343 

guardian  cannot  bind  ward  by  contract 344 

but  may  be  reimbursed  from  ward's  estate 344 

title  to  promissory  notes,  &c 345 

application  of  statute  of  frauds  to  guardian's  contract  .     .     .     345 

agents  or  attorneys  employed  by  guardian 346 

changes  in  character  of  ward's  property;  sales,  exchanges,  &c.     347 

conversions  of  property  not  favored 347 

but  practical  conversion  sometimes  takes  place 347 

sales,  exchanges,  mortgages,  &c 347 

unauthorized  acts  are  at  guardiiin's  peril 348 

limit  of  guardian's  responsibility 348 

he  must  not  derive  undue  advantage 349 

limit  of  guardian's  liability 349 

duties  as  to  ward's  real  estate;  rents,  leases,  &c 350 

authority  over  real  estate  limited;  easements,  dower,  &o.     350,  351 

right  to  mortgage,  execute  deeds,  &c 351 

duties  as  to  personal  estate 352 

must  secure  property,  collect  debts,  &c 352 

investment  of  ward's  funds 353 

when  guardian  is  chargeable  with  interest 354 

speculations  with  ward's  money 354 

sales  of  ward's  personal  estate 347,  355 

sales  of  ward's  real  estate 347,351,356-363 

sales  of  lands  under  American  statutes ;  essentials,  &c.  .     .  359-363 

mortgage  of  lands  under  statutes 361 

guardian's  own  sale  not  binding;  usually  sale  must  be  public     364 

criminal  responsibility 381 

See  Accounts;  Bond;  Inventory;  AVaru.    And  see  Guardianship. 


710  INDEX, 

Section 

GUARDIAN  AD  LITEM, 

in  suits  against  infants 296,  4i9,  451 

GUARDIANSHIP, 

in  general 2,  11,  283,  320 

defined;  applied  to  person  and  estate 283 

ancient  species  of  guardianship 284 

by  nature  and  nurture 285,  290 

in  socage 286,  290 

testamentary  guardianship 287,  290 

chancery  guardianship 288,  291 

by  infant's  election 289 

probate  guardianship 291 

at  civil  law 292 

of  insane  persons 283,  293,  380 

of  spendthrifts 293 

of  married  women 294 

for  special  purposes 295 

guardians  ad  litem 296,  451 

quasi  relation  established 326 

conflict  of  laws ;  ward's  person  or  property 327-329 

constitutional  questions 330 

See  Appointment;  Guakdian;  Tekmixation;  Ward. 


H. 

HABEAS  CORPUS, 

as  to  husband  and  wife 48 

as  to  custody  of  child 246,  248 

HOMESTEAD 214 

HOUSEKEEPING-ALLOWANCE 161 

See  Separate  Property. 

HUSBAND  AND   WIFE, 

general  remarks  as  to  systems  of  legislation,  &c 4-10 

outline  of  examination 33 

person  of  the  spouse;  coverture  doctrine;  husband  head  of 

family 34 

duty  of  spouses  to  adhere  or  live  together 35 

breach  by  desertion,  &c.;  duty  of  making  cohabitation  toler- 
able         36 

the  matrimonial  domicile 37 

husband's  right  to  establish  the  domicile 38 

domicile  relative  to  alien  and  citizen 39 

woman's  name  changed  by  marriage 40 

right  of  one  spouse  to  the  other's  society;  suit  for  entice- 
ment       41 

husband's  duty  to  render  support 42 


INDEX. 


711 


Section 
HUSBAND   AND   WIFE  — continued, 

•wife's  duty  to  render  services 43 

right  of  chastisement  and  correction 44 

husband's  right  of  gentle  restraint 45 

regulation  of  household,  visitors,  &c 46 

custody  of  children 47 

remedies  against  one  another  for  breach  of  matrimonial  obli- 
gations        48 

right  of  divorce,  indictment,  &c 48 

coverture  affecting  public  wrongs  and  private  wrongs 49 

spouse  as  a  criminal;  presumption  of  husband's  coercion  and 

wife's  innocence 50 

offences  against  the  property  of  either  spouse 51 

general  rights  and  disabilities  of  the  spouses, 

coverture  and  mutual  disabilities 52 

mutual  disability  to  contract,  sue,  &c 52 

mutual  disqualification  as  witnesses 53 

See  Coverture. 

equity  and  late  legislative  changes 100-102 

See  Married  WoMKx's  Acts;  S*:parate  Propertt. 

prevalent  tendency  to  equalize  the  sexes 100-102 

settlements  and  transactions  between  husband  and  wife  .    171,  184 

See  Settlements. 
general  contracts  between 191 


191 
192 
192 
193 
193 


193, 


husband  as  borrower  from  wife 

promissory  note  from  one  spouse  to  the  other  . 
conveyance  from  one  spouse  to  another;  lease,  &c 

of  lands  to  husband  and  wife  .  . 
promissory  note  or  security  payable  to  husband  and  wife 
gift,  &c.,  to  husband  and  wife;  their  joint  investment  . 
resulting  trust  as  to  fund  in  husband's  or  wife's  favor  . 
equitable  relief  for  fraud,  &g.,  of  one  upon  the  other  . 
insurance  on  husband's  life  for  wife's  benefit  .... 
dissolution  of  marriage  relation  by  deatli ;  rights  and  duties 

of  survivor 196,  204 

See  Death. 

wills  of  married  women 203,  n. 

effect  of  divorce  upon  property  rights 221,  222 

See  Separation;  Divorce. 
conflict  of  laws  as  to  marital  rights 222,  n. 


194 
194 
195 


I. 


ILLEGITIMATE   CHILDREN, 

rights  and  disabilities  in  general ;  their  peculiar  footing     .     .  276 

disability  of  inheritance 277 

common-law  and  civil-law  doctrines 277 

inheritance  permitted  in  the  United  States 277 


712  INDEX, 

Section 
ILLEGITIMATE   CHILDREN  —  continued, 

preference  as  between  mother  and  father 278 

putative  father's  right  of  custody 278 

statutes  affecting  the  subject 278 

whether  putative  father  must  maintain        279 

seduction  may  support  promise  to  mother 279 

general  riglits  of  action  as  to  such  children 280 

persons  in  loco  parentis ;  distant  relatives 280 

bequests  to  illegitimate  children 281 

extent  of  doctrine  in  England  and  America 281 

guardianship  of  illegitimate  child 282 

IMPOTENCE, 

as  marriage  disqualification 19 

INFANCY, 

in  general ;  classification 2 

considered  as  impediment  to  marriage 20 

See  Infants 

as  to  antenuptial  debts 56 

as  applied  to  wife's  necessaries 71 

conveyance  of  lands 96,  447 

INFANTS, 

husband  bound  as  adult 69,  74,  87 

election  of  guardian 289,  301 

guardian  sometimes  holds  infant's  legacy 324 

or  administers  in  his  stead 325 

sale  of  infant's  lands;  statute  provisions 356-363 

when  the  age  of  majority  is  reached 391 

general  incapacity  to  contract 392 

growing  capacity  during  non-age 392 

legislative  relief  from  non-age 392 

conflict  of  laws  as  to  the  true  age  of  majority 393 

right  of  infant  to  hold  ofiice  and  perform  oflicial  functions    .  394,  416 

responsibility  for  crimes 395 

infant's  criminal  complaint;  infant  as  prosecutor     ....  396 

wills  of  infants 397 

testimony  of  infants 398 

their  marriage  settlements ...  399 

acts  void  and  voidable 400 

general  doctrine  of  binding  acts  and  contracts 400 

test  of  void  and  voidable  contracts 401 

privilege  of  avoiding  not  extended  to  others 402 

modern   tendency   to   regard  all   acts  as  voidable  only  ;    in- 
stances         403 

acts  and  contracts  excepted  as  void 403 

bonds,  notes,  &c. ;  voidable  purchase 404,  405 

deeds,  leases,  exchanges,  &c. ;  rule  of  Zouch  v.  Parsons     .     .  405 

letters  of  attorney,  cognovits,  &c 406 

miscellaneous  voidable  acts  and  contracts 407 

infant  shareholder's  liability 407 


INDEX.  713 

Section 
INFANTS  —  continued, 

gifts  of  infant 407 

infant's  trading  and  partnership  contracts 408 

summary  of  doctrine  as  to  void  and  voidable 409 

usual  period  of  ratification,  that  of  majority 409 

disaffirmance  of  contracts  during  minority 409 

acts  binding  ujjon  the  infant 410 

general  principle  of  binding  acts 410 

contracts  for  necessaries 411 

See  Necessaries. 

contracts  relative  to  marriage  state 415 

infant's  acts  v^rhich  do  not  touch  his  interest;  where  trustee, 

officer,  &c 416 

infant  shareholders  and  defendants  in  equity 417 

acts  which  the  law  would  have  compelled 418 

infant's  contract  of  enlistment ;  contracts  binding  because  of 

statute 419 

indentures  of  apprenticeship 419 

infant's  recognizance  on  criminal  charge 420 

contracts  of  service  construed ;  whether  binding 421 

whether  compensation  is  due  when  infant  avoids       ...     .421 

injuries  and  frauds  of  infants 422-431 

See  Torts. 
ratification  and  avoidance  of  acts  and  contracts    .     .     .       432-448 
See  Ratification. 

actions  by  and  against 449-451 

chancery  practice  relative  to  infants 452 

binding  effect  of  decree  or  judgment  upon  infant      ....  453 
See  Actions.     See  also  Children  ;  Domicile;  Guardian. 
INJURIES.     See  Torts. 
INSANE   PERSONS, 

disqualification  for  marriage 18 

See  Guardianship. 
INSURANCE, 

of  husband's  life  for  wife's  benefit 195 

of  parent  on  child's  life 253 

INVENTORY, 

of  ward's  estate  to  be  filed  by  guardian 370 


J. 

JOINT   GUARDIANS 322,350,368 

See  Guardian. 


LEASE 88,  90,  133,  150,  192 

See  Chattels  Real;  Guardian;  Real  Estate. 


714  INDEX. 

Section 
LEGITBIACY, 

definition 224 

presumption  of  legitimacy 225 

legitimation  of  illicit  offspring  by  subsequent  marriage    .    226,  227 

status  of  children  born  after  divoi'ce 227  a 

doctrine  in  marriages  null,  but  bona  fide  contracted  ....     228 

legitimation  by  sovereign  or  legislative  acts 229 

conflict  of  laws  as  to  legitimacy 231 

LETTERS, 

of  husband,  wife's  title 208,  n. 

as  basis  of  marriage  settlement 177 

LIFE  ESTATE, 

of  wife,  affected  by  coverture 98 


M. 

MAINTENANCE, 

nature  and  definition;  wife  and  children 42,236 

how  far  the  parental  duty  extends  at  common  law    ....     237 

statute  43  Eliz.  applied,  &c 237 

maintenance  of  stepchildren 237,  273 

children  of  separated  or  divorced  parents  .     .     237 

maintenance  ordered  in  chancery 238 

circumstances  considered  by  the  court  of  chancery    ....     238 

father  unable  to  support  fully,  &c 238 

rule  applied  to  mother 239 

restriction  applied  to  maintenance;  past  maintenance     .     238,  239 

rules  in  chancery,  income,  fund,  &c 239 

rule  applied  to  guardian 337-339 

See  Necessaries. 

MAJORITY.     See  Infants. 

MARRIAGE, 

its  primitive  institution,  &c 9,  10 

general  conclusions  as  to  marital  relation 10 

definition  of 12 

more  than  a  civil  contract ;  an  institution 13 

void  and  voidable  ;  nullity 14 

essentials  of 15 

disqualification  of  blood  ;  consanguinity  and  affinity     ...       16 

civil  condition  ;  race,  color,  &c 17 

religion 17,  n. 

mental  capacity;  insane  persons,  &c 18 

drvmkenness  ;  deaf  and  dumb  persons,  &c 18 

physical  capacity  of  parties  ;  impotence 19 

disqualification  of  infancy 20,  415 

prior  marriage  undissolved  ;  polygamy  ;  bigamy 21 

impediments  following  divorce 22 


INDEX.  715 

Section 
MARRIAGE  —  continued, 

force,  fraud,  and  error  ;  concealment  of  uuchastity,  &c.      •      23,  24 

essential  of  marriage  celebration 25 

perfect  and  imperfect  consent 25 

informal  marriage;  words  of  present  and  future  promise,  &c.  26,  27 
formal  marriage;  regular  celebration  by  clergyman,  &c.     .      28,  29 

consent  of  parents  and  guardians 30 

legalizing  defective  marriages;  legislative  marriage.     ...       31 

restraint  of,  in  trusts,  &c 32 

change  of  woman's  name  by 40 

reputed  or  de  facto,  as  to  wife's  necessaries 71 

of  creditor  and  debtor;  effect  on  debt 73 

with  executrix  or  female  guardian,  effect 86 

conflict  of  laws 222,  n. 

of  child  against  parent's  consent,  effect  of 260 

emancipation  by  marriage 267 

effect  upon  guardianship  of  infant 313 

of  female  guardian,  effect 306,  318 

of  ward  in  chancery 390 

MARRIAGE  AND  DIVORCE, 

scope  of  expression .2 

See  Divorce;  Marriage. 

MARRIED   WOMEN'S   ACTS, 

Roman  and  civil  law  experience 6 

modern  property  rights  in  America  and  England      ....  6,  8 
legislative  changes  in  general ;  how  to  be  studied      .     .     .    99-102 

scope  and  defects  of  legislation 101 

equitable  and  statutory  separate  estate 102 

in  England, 

married  women's  act  of  1870,  &c Ill 

in  the  United  States, 

origin  of  our  modern  married  women's  acts     ....       112,  113 

New  York  married  women's  act  of  1848 113 

early  acts  of  Pennsylvania  and  other  States 113 

revolution  in  marital  rights 113 

summary  of  statute  changes 113,  n. 

their  scope  to  extend  rather  than  limit 114 

constitutional  points ;  retrospective  operation,  &c 114 

as  to  antenuptial  property  and  acquisitions  from  third  per- 
sons    115 

change  of  investment ;  increase  and  profits 116 

method  of  transfer  from  third  parties  under  these  acts  .     .     .  117 

acquisitions  from  husband  not  so  much  favored 118 

wife's  right  to  bestow  upon  husband 118 

husband's  control;  mixing  wife's  property  or  keeping  it  dis- 
tinct        119 

husband  as  trustee  or  agent 120 

presumptions  as  to  separate  property ■  120  a 


716  INDEX. 

Section 
MARRIED   WOMEN'S   ACTS  — continued, 

schedule  or  inventory  as  proof  of  title 121 

statutory  separate  property  and  equitable  separate  property 

compared 122  et  seq. 

See  Separate  Puoperty. 
American  rule, 

wife's  dominion  under  married  women's  acts 142 

New  York  rule  as  to  suretyship 143 

rule  of  other  States  where  charge  is  not  beneficial  ....  143 
combined  tests  as  to  benefit  and  express  intention    ....     144 

whether  wife  may  bind  as  surety  or  guarantor 145 

inquiry  into  consideration  ;  promissory  notes,  bonds,  &c.  .  .  140 
equity  charges  on  general  as  well  as  specific  property  .  .  .  147 
wife's  executory  promise,  whether  chargeable  ;   purchase  on 

credit,  &c 148 

wife's  ownership  of  stock ;  dominion  and  liability    ....     149 

liability  for  professional  services 149 

joinder  of  husband  in  contracts  and  conveyances 150 

wife's  liability  on  covenants 150 

lease  of  wife's  separate  lands 150 

improvements,  repairs,  &c.,  on  wife's  land  ;  mechanics'  liens       151 

mortgage  of  separate  real  estate 152 

husband  as  managing  agent  of  wife 153 

husband's  comi^ensation  as  managing  agent 154 

husband  as  managing  agent ;  fraud  on  his  creditors  .  .  .  154 
husband's  fraud  upon  wife  as  to  her  separate  property  ;  her 

title  protected 155 

husband's  use  of  wife's  income,  gift,  &c 155 

married  woman  as  trustee 156 

statutes  tending  to  treat  wife  like  a  single  woman  as  to  prop- 
erty        157 

estoppel  as  to  wife  with  separate  property 157 

proceedings  for  charging  separate  estates  with  debts      .     .     .     158 

practice  in  such  suits 158 

English  property  act  of  1870  ;  wife's  disposition 159 

earnings  of  wife 162 

trade,  separate 163  el  seq. 

See  Trade. 

general  changes  in  coverture  doctrines 170,  n. 

as  to  wife's  antenuptial  debts 170,  n. 

as  to  wife's  disability  to  contract 170,  n. 

as  to  necessaries  of  wife  and  family 170,  n. 

torts  committed  by  wife 170,  n. 

torts  committed  upon  the  wife 170,  n. 

torts  and  crimes  by  one  spouse  affecting  the  other    .     .     .    170,  n. 

changes  concerning  the  wife's  property 170,  n. 

equity  to  settlement   .     .     .     170,  n. 

wife's  right  to  sue,  submit  to  arbitration,  &c 170,  n. 

general  conclusions 170,  n. 


INDEX.  717 

Section 
MARRIED   WOMEX'S   ACTS  — continued, 

general  transactions  between  husband  and  wife  ....     170,  n. 
See  Husband  and  Wife. 

MASTER, 

obligations  as  to  discipline,  education,  &c 467 

duty  to  furnish  necessaries 468 

whether  he  must  find  work 469 

must  indemnify  servant 470 

duty  to  receive  into  service  the  person  engaged 471 

remedies  against  master  for  breach  of  contract     .     .     .       471,472 

obligation  to  pay  wages 472 

aiiY)Oi't\onment  and  quantum  meruit :  offsets,  &c 473 

wages:    effect  of  change  of  contract,  excuse  by  act  of  God, 

justifiable  termination,  &c 474 

where  termination  is  by  mutual  consent,  conditions,  &c.    .     .  475 

representations  as  to  servant's  character,  guaranty,  &c.      .     .  476 

general  rights  of  master, 

right  to  protect  and  defend 479 

right  of  action  for  injuries  to  servant 486 

seduction,  enticing  away,  and  harboring 487 

right  to  servant's  acquisitions;  how  far  respected     ....  488 

general  liabilities  of  master, 

bound  by  servant's  acts  and  contracts  as  agent 489 

application  of  rule  to  contracts 489 

agents,  general  and  special 489 

civil  liability  for  servant's  torts 490 

not  for  acts  wanton  and  beyond  scope  of  employment   .     .     .  490 

limitations  of  rule 491 

not  liable  to  servant  for  tort  of  fellow-servant 492 

but  liable  for  his  own  negligence 492 

•who  are  servants  and  fellow-servants 492 

not  criminally  responsible  for  servant's  misconduct,  but  only 

for  his  own 493 

See  Servant. 

]\I ASTER   AND   SERVANT, 

nature  and  origin  of  the  relation 2,  454 

limitations  of  the  subject 254,  461 

rule  of  classification 455 

final  observations  on  this  topic 494 

See  Apprentice;  Master;  Servant;  Workmek. 

MORTGAGE, 

of  wife's  lands 91,  94 

by  wife  for  husband's  debts      . 137,  152 

of  wife's  separate  lands 137,  152 

■wife's  equity  of  redemption 209 

exoneration 209 

by  guardian,  of  ward's  property 347,  351,  361 


718  INDEX. 


N. 

Section 

NECESSARIES, 

ofwife 61-71 

under  equity  and  modern  legislation       ....  109,  128,  170,  n. 
See  Contracts. 

of  children 241,  337,  411 

whether  child  may  bind  parent 241 

whether  child  must  supply  parent 265 

whether  guardian  must  supply  ward 337 

leading  principles  as  to  infants 411 

what  are  classed  as  necessaries  for  an  infant 411 

question  one  of  mixed  law  and  fact 412,  413 

education,  house-repairs,  legal  expenses 412 

trading  contracts  not  included 412 

limitation  of  liability  for  necessaries      ........     413 

money  advanced  for  necessaries 414 

infant's  bond,  note,  &c.,  for  necessaries 414 

of  a  servant,  and  master's  liability 617 

NEGLIGENCE.     See  Torts. 

NULLITY, 

of  marriage,  suits  for 14 


P. 

PARAPHERNALIA ■   ...    208 

PARENT, 

consent  of,  in  marriage 30 

rule  as  to  family  necessaries 71 

See  Children;  Infancy. 
duties  in  general, 

leading  duties  to  children  enumerated 233 

duty  of  protection 234 

duty  of  education  .     , 235 

See  Education. 

duty  of  maintenance 236,  338 

See  Maintenance. 

duty  to  provide  profession  or  trade 242 

rights  in  general, 

general  authority  of  the  parent 243 

right  of  chastisement;  indictment  for  cruelty      .     .     .     .244,332 

right  of  custody 245 

See  Custody. 

right  to  child's  labor  and  services 252 

See  Earnings. 


INDEX.  719 

Section 
PARENT  —  continued, 

right  to  clothing,  money,  and  other  effects 253 

mother's  rights  to  child's  services  and  earnings 254 

no  right  to  child's  general  property 255 

how  far  legislature  may  interfere  with  parents'  rights  and  duties  25(i 
rights  as  to  child's  injuries 257 

See  Torts. 
liabilities  as  to  child's  torts 263 

See  Torts. 

transactions  between  parent  and  child 270,  271 

rule  of  advancements;  expectant  estates 272-275 

legacies  to  children ;  descent  and  distribution       ....  272-275 

claims  of  child  upon  estate 274 

suits  between  parent  and  child 275 

PARENT   AND    CHILD, 

nature  of  the  relation 11,  223 

See  Children;  Illegitimate  Children;  Legitimacy;  Parent. 

PERSONAL  PROPERTY  OF  WIFE, 

coverture  or  common-law  doctrine, 

marriage  a  gift  to  husband 80 

extent  of  gift  considered ;  effect  of  divorce,  &c 80 

earnings  of  wife  vest  in  husband 81 

wife's  personal  property  in  possession,  or  corporeal  personalty  82 
incorporeal  personal  property,  or  cJioses  in  action, 

reduction  by  husband  requisite 83 

what  are  the  wife's  choses  in  action 83 

money  rights  or  claims 83 

choses  in  action,  &c.,  what  constitutes  reduction  into  possession  84 

wife's  equity  to  settlement,  where  chancery  is  sought  ...  85 

modern  changes ;  married  women's  acts 170,  n. 

PIN-MONEY 160 

See  Separate  Property. 

POLYGAMY 21 

See  Marriage. 

PORTIONS 183,  n. 

See  Settlements. 

POSTNUPTIAL   SETTLEMENTS o    ...     184 

See  Settlements. 
PRESUMPTION, 

of  wife's  coercion  by  husband 49  75 

in  wife's  necessaries 63   69 

as  to  ownership ;  wife's  separate  property 120  a 

PROCHEIN  AMI, 

in  suits  by  infants 449 


720  INDEX. 


B 

Section 
RATIFICATION", 

of  voidable  acts  and  contracts ;  infants  may  ratify  or  disaffirm  432 

Lord  Tenterden's  act  construed 433 

other  statutes  on  this  point 433 

American  doctrine  of  ratification  independent  of  statute  .     .  434 

conflicting  decisions;  instances 434,435 

■whether  acknowledgment  of  debt  suffices;  conflicting  J/c/a     .  436 

summary  of  American  doctrine 437 

express  repudiation  and  disaffirmance 437 

ratification  as  to  real  estate;   his  conveyance;   lease;    mort- 
gage, &c 438,  439 

•whether  entry  upon  the  land  is  necessary 440 

rule  as  to  an  infant's  purchases 441 

executory  contracts,  &c.,  voidable  during   infancy;  how  af- 
firmed or  disaffirmed 442 

rule  applied  to  infant's  contract  of  service 443 

parents,  guardians,  &c.,  cannot  render  contract  obligatory  on 

infant 444 

miscellaneous  points  in  ratification ;  new  promise ;  knowledge 

of  rights 445 

whether  infantmust  place  other  partyi;;  statu  quo'ii  disaffirming  446 

ratification,  &c.,  as  to  infant  maiTied  woman 447 

how  far  chancery  may  elect  for  the  infant 448 

REAL   ESTATE, 

of  wife;  effect  of  coverture, 

general  rule;  husband's  freehold 89 

husband's  interest,  how  lost 89 

where  no  life  interest  is  acquired  by  him 89 

husband's  right  to  convey  or  lease 90 

mortgage 91 

dissent  to  purchase 92 

waste,  conversion,  &c 92 

agreement  to  convey 93 

wife's  agreement  to  convey,  and  her  conveyance 94 

mortgage 94 

statute  formalities,  &c.,  in  conveyance 94 

in  mortgage 94 

covenants  in  statute  conveyance,  mortgage,  &c 95 

conveyance,  &c.,  of  infant  wife's  lands 96 

estoppel  applied;  general  lands  and  separate  lands  distinguished  97 

wife's  life  estate;  husband's  interest ;  joint  tenancy,  &c.     .     .  98 

husband's  freehold  interest  in  land,  not  devisable     ....  99 

equitable  conveyance  of  wife's  separate 133 

encumbrance  by  mortgage,  &c 137,  152 

changes  by  mai-ried  women's  acts 170,  n. 

of  infant  loard ;  how  sold,  mortgaged,  &c 356-363 


INDEX.  721 

Section 
REDUCTION   INTO   POSSESSION, 

under  coverture  doctrine 84 

See  Personal  Property  of  Wife. 
RELIGION, 

marriage  disqualification  of 17,  n. 

RESTITUTIO  J^, 

of  conjugal  rights;  suit  tor 218,  n. 


s. 

SEDUCTION, 

marriage  of  seducer  and  seduced 23,  24 

of  wife 77 

of  child 261 

of  servant 487 

See  Illegitimate  Children. 

SEPARATE   PROPERTY, 

of  married  women,  its  nature  and  creation 6 

prevalent  tendency  to  equalize  the  sexes 100 

wife's  consideration  promoted;  idea  of  domestic  government 

weakened 101 

separate  property  of  wife  in  general 102 

equitable  and  statutory  separate  estate 102 

English  chancery  doctrine, 

origin  and  nature  of  separate  estate  in  English  chancery  .     .  103 

whether  appointment  of  trustee  is  needful 103 

coverture  applies  prima  facie  :  how  separate  estate  is  created  105 

admission  of,  by  suit,  &c.,  by  husband 105 

separate  use  binds  produce  of  fund 106 

continues  only  during  marriage  state ;  exceptions  107 

husband's  rights  on  wife's  decease 107 

separate  use  may  be  ambulatory ;  case  of  marriage ;  widow- 
hood; remarriage 107 

wife's  power  to  renounce 108 

husband's  disposition  to  bona  fide  purchasers 108 

whether  affects  husband's  obligations 109 

clause  of  restraint  ujDon  anticipation 110 

separate  use  in  common-law  courts  ;  English  legislation    .     .  Ill 
See  Married  Women's  Acts. 

American  doctrine, 

in  general;  equity  and  legislation 112 

American  equity  doctrine, 

statutory  sepai-ate  property  and  equitable  separate  property   .  122 

American  equity  doctrines  borrowed  from  England  ....  123 

whether  trustee  need  be  appointed 123 

creation  of  separate  use  in  equity;  what  words  and  acts  suffice  124 
^                                                           46 


722  INDEX. 

Section 
SEPARATE   PROPERTY  —  continued, 

acquisition  by  contract ;  produce  and  income 125 

as  to  preserving  identity  of  wife's  separate  funds      ....     126 
separate  use  continues  only  during  marriage  state    ....     127 

ambulatory  operation ;  widowhood;  remarriage 127 

whether  husband's  obligations  are  affected 128 

restraint  upon  anticipation 129 

Wife^s  dominion  over,  §'c., 

general  principle  of  wife's  dominion 130 

unless  restrained,  wife  takes  with  power  to  dispose  ....     131 

same  principle  applies  to  income,  profits,  &c 132 

technical  difficulties  as  to  real  estate 133 

English  doctrine  of  liability  of  separate  estate     .     .     .    134  et  seq. 

liability  for  wife's  engagements 134 

latest  English  modification  of  rule 135 

liability  in  England;  engagements  not  beneficial  .     .     .     135 

liability  for  engagements,  &c. ;  American  rule 136 

property  with  power  of  appointment 136  a 

wife's  right  to  bestow  on  husband,  bind  for  his  debts,  &c.      .     137 

concurrence  of  trustees  in  wife's  disposition 138 

as  to  precluding  wife's  dominion 139 

wife's  participation  in  breach  of  trust;  husband's  misconduct     140 
income  from  separate  estate  to  husband;  arrears       ....     141 
See  Married  Women's  Acts. 

wife's  pin-money;  nature  and  incidents 160 

housekeeping  allowance 161 

earnings 162 

See  Earnings. 

separate  trade 163  et  seq. 

See  Trade. 
resulting  trust  as  to  fund  in  husband's  or  wife's  favor  .     .     .     194 

See  Husband  and  Wife;  Settlements. 
purchasing  spouse's  property  on  sheriff's,  &c.,  sale  ....     194 

equitable  relief  for  fraud 194 

insurance  for  wife's  benefit 195 

rights  after  death 196,  203  n.,  204 

SEPARATION, 

wife,  when  treated  tisfeme  sole 55 

deed  and  expenses,  whether  necessaries 61 

rule  as  to  wife's  necessaries 62,  66  ei  seq. 

effect  upon  husband's  suit  for  loss  of  wife's  services       ...       77 

effect  on  wife's  real  estate  and  coverture  rights 89 

in  general 215 

deeds  of,  their  history  in  England 215,  216 

in  the  United  States 217 

intervention  of  trustee 218 

what  covenants  upheld 218 

latest  English  doctrine  upholds  deed 218,  n. 

custody  of  offspring  under 218,  n. 


INDEX.  723 

Section 
SEPARATION"  —  continued, 

•whether  deed  bars  restitution  of  conjugal  rights  .     .     .     .     218,  n. 

specific  performance  of  covenant  to  separate 218,  n. 

separate  maintenance  from  unfaithful  husband 219 

abandonment;  wife's  right  to  earn,  contract,  &c 219 

SERVANT, 

relation  arises  upon  the  hiring 458,  461 

the  contract  of  hiring 458 

distinction  between  menial  and  other  servants 458 

contract  affected  by  statute  of  frauds      .  ' 459 

in  restraint  of  trade 460 

contracts  for  life;  oppressive  length  of  term 460 

creating  the  relation  of  service:  ^uast  servants 461 

service  and  agency 461 

how  contract  is  terminated 462 

causes  of  discharge,  &c 462,  463 

termination  of  service  by  mutual  consent 464 

special  terms  of  service,  &c 464 

servant  does  not  occupy  premises  as  tenant 465 

servant's  right  to  wages ;  his  own  property       ....       472,  488 

liabilities  as  to  master, 

bound  to  perform  engagement 477 

accountability  to  master ;  negligence,  vxnskilfulness,  &c.    .     .  478 

battery  in  defence  of  master 479 

he  may  be  a  witness  for  his  master 480 

liabilities  as  to  third  persons, 

not  personally  liable  on  contract  for  master  ;  exceptions     .     .  481 

otherwise  in  case  of  fraud  and  corruption 482 

liability  for  his  torts 482 

misfeasance  and  nonfeasance 482 

government  and  its  servants ;  public  officers 483 

servant  criminally  accountable 484 

See  Master. 
SETTLEMENT, 

wife's  equity  to 85 

SETTLEMENTS,   MARRIAGE, 

nature  of  antenuptial  and  postnuptial 171 

promises  to  marry  and  promises  in  consideration  of  marriage  172 

effect  of  divorce  upon 221 

L  Antenuptial:  effect  on  wife's  debts  f/«?;i  so/a 57 

marriage  here  a  supporting  consideration 173 

extent  of  support;  consideration  as  to  collateral  parties,  &c.  .  174 

settlement  good  in  pursuance  of  agreement  before  marriage  .  175 

form  of  settlement ;  liberal  effect  to  intent 175,176 

marriage  articles ;  letters  preliminary  to  deed 177 

settlement  by  father,  or  other  third  party 177 

statute  of  frauds;  promises  "  in  consideration  of  marriage  "  172, 

179 


724  INDEX. 

Section 
SETTLEMENTS,  MARRIAGE  —  continued, 

authenticity  of  settlement  must  be  established 180 

whether  trustee  must  be  designated ;  trustee's  concurrence     .     180 

secret  transfer;  fraud  of  intended  spouse 181 

reforming  settlements  framed  on  articles 182 

portions  and  provisions  for  children,  &c 183 

mistakes,  fraud,  improvidence,  &c.,  in  settlement     .     .     .     183,  n. 

construction  of,  intent  upheld 183,  n. 

clauses  barring  rights  of  survivor 183,  n. 

covenant  to  settle  after-acquired  property 183,  n. 

in  United  States;  registiy  and  other  statutory  provisions  .     183,  n. 

11.  Postnuptial:  distinguished  from  antenuptial 184 

binding  upon  parties;  otherwise  as  to  creditors,  &c.      .     .     .     184 

English  statutes,  13  &  27  Eliz 185 

effect  of  13  Eliz.  as  to  creditors;  English  rule 186 

American  rule 18G 

effect  of  bankrupt  acts 186 

27  Eliz.  as  to  purchasers;  English  doctrine       .     .     .     187 

American  doctrine  .     .     .     187 

valuable  consideration  sustains  against  creditors,  &c.    .     .     .     188 

statutory  requirements;  registry,  &c 188,  n. 

as  between  the  spouses, 

voluntary  conveyance  or  gift  good  against  grantor  or  donor  .  189 
effect  of  mere  promise  or  assignment;  declaration  of  trust  .  189 
husband's  voluntary  conveyance  to  wife  sustained    ....     189 

gift  or  settlement;  instances 189,  n. 

husband's  transfer  not  intending  a  gift 190 

gift  or  conveyance;  wife  to  husband 190 

postnuptial  settlement  or  transfer  upon  consideration    .     .     .     190 

trustees  in  postnuptial  settlements 190 

III.  Settlements  of  Infants 399 

SPENDTHRIFTS.     See  Guardianship. 
SPOUSE.     See  Husband  and  Wife. 
STEP-CHILDREN, 

rights  and  liabilities 237,  239,  261,  273 

SURVIVORSHIP ;       88 

See  Death. 


T. 

TERMINATION, 

of  guardianship  in  general 310 

its  natural  expiration  as  to  minors,  ward  of  age,  &c.      .     .     .  311 

as  to  insane  persons  and  spendthrifts 311 

death  of  the  ward 312 

marriage  of  the  ward .  313 

death  of  the  guardian 314 


INDEX.  725 

Section 

TERMINATION—  con/mMe(?, 

resignation  of  the  guardian 315 

removal  and  supersedure  of  guardian 316,  317 

marriage  of  female  guardian 318 

other  instances  where  a  new  guardian  may  be  appointed    .     .  319 

of  servant's  contract 402^Gi 

TORTS, 

of  one  spouse  upon  another 49,  51 

committed  by  the  wife 74 

coverture  principle 74 

husband  and  wife  sued  together,  or  husband  alone   ....  75 

coercion  presumed • 75 

limitation  of  husband's  liability 75 

instances;  management  of  defence 75 

where  basis  of  fraud  is  wife's  contract 76 

replevin  in;  equity  proceedings,  &c 76 

committed  upon  the  ivife 77 

general  rule ;  practice 77 

damages ;  survival  of  action 77 

husband's  separate  cause  of  action 77 

instantaneous  death ;  statutes,  &c 78 

committed  upon  both  husband  and  wife 79 

as  to  torts  in  general ;  marriage  essential 79 

under  equity  and  married  women's  acts 170,  n. 

of  children  considered 257 

parent  may  sue  for  loss  of  child's  services    . 257 

limitations  of  the  rule 258 

statutes  affecting  the  right  of  action 259 

incidents  of  such  suits 259 

assault  and  battery  of  child 259 

enticement  and  abduction 260 

cases  where  right  of  action  is  not  sustained 260 

seduction  of  child 261 

amount  of  damages  recoverable 262,  430 

liability  of  parent  for  torts  or  frauds  committed  by  his  infant 

child 263 

child  himself  is  answerable 263 

but  not  necessarily  the  parent 263 

committed  by  infants 423 

rule  of  infant's  liability;  civilly  liable 423 

where  parent  expressly  commands 423 

not  responsible  for  torts  arising  from  contracts 424 

equitable  principle  of  later  cases 424,  425 

embezzlement  and  deceit 425 

infant's  fraudulent  representation  as  to  age,  &c 425 

chancery,  civil  law,  and  statutory  rules 426 

suffered  by  infants 427 

general  right  to  sue 427 

except  where  a  trespasser,  or  contributing  to  injury ....  428 


726  INDEX. 

Section 
TORTS  —  continued, 

contributory  negligence  of  child's  parent,  protector,  &c.     .     .  429 

joint  wrong-doers 429 

suit  of  parent  and  child  for  injury;  loss  of  services  reckoned    .  430 
ai-hitration  and  compromise  of  torts  and  settlement  committed  or 

suffered 431 

torts  and  frauds  of  servant 629 

of  government  agents 630 

liability  of  master  for  servant's  torts 636-644 

See  also  Guardiaxship;  Mastek  a\d  Sekvant. 
TRADE, 

separate,  by  married  woman 163 

earlier  English  doctrine 163 

by  custom  of  London,  &c 163 

not  common  in  England 163 

American  equity  doctrine 164 

assent  of  husband,  American  custom,  &c 164 

repudiated  in  some  States 164 

American  equity  rule,  general  conclusions 165 

under  recent  English  statutes 166 

American  statutes 166,  167 

statute  requirements,  registry,  &c 167 

wife's  capacity  for  carrying  it  on 167 

selling  out  the  business 167 

husband's  participation,  his  agency,  &c 168 

husband  and  wife  as  copartners 169 

wife's  copartnership  with  third  persons 169 

suits  by  or  against  wife  as  trader 169 

trading  under  civil  codes 170 

TRUSTEE, 

in  separate  property 103,  123,  138 

mai'ried  woman  as 156 

in  antenuptial  settlement 180 

in  separation  deed 218 


W. 

WAGES.    See  Earnings. 

WARD, 

judicial  control  of  ward's  property 323 

property  followed  whenever  wrongfully  disposed  of  ...     .     349 

as  to  ivard^s  real  estate 347,  349 

constitutional  questions  concerning  sales 330 

extent  of  guai'dian's  control 350,  351 

sales  not  allowed  in  chancery 355,  356 

purchases  on  ward's  behalf 356 

civil-law  rule 358 

legislative  authority  may  intervene 359 


INDEX.  727 

Section 
WARD  —  continued, 

American  statutes  permit  sales 359,  360 

disposition  of  proceeds 360 

essentials  of  purchaser's  title 361 

immaterial  irregularities;   those  which  make  sale  voidable; 

those  -which  make  sale  void 361 

mortgages  of  ward's  laud  under  statute 361 

sales  of  land  by  non-residents 362 

New  York  chancery  rule ;  American  equity  rule 363 

general  right.';  of  the  icard 378 

doctrine  of  election  as  to  wards,  insane  or  infant      .     .       379,  380 

remedies  against  his  guardian 381 

action  or  bill  for  account  after  guardianship;  limitations,  &c.     382 

right  to  recover  embezzled  property 383 

right  to  have  fraudulent  transactions  set  aside 384 

may  repudiate  or  confirm  unauthorized  acts  at  his  election  .  385 
election  as  to  guardian's  bargains  with  ward's  funds  .  385,  386 
resulting  trusts ;  guardian's  misuse  of  funds  or  purchase  of 

property 386 

transactions  between  guardian  and  ward;  undue  influence, 

&c 387 

gifts  to  guardian  treated  with  suspicion 387 

such  questions  determined  on  final  settlement  of  accounts      .     388 

ward's  right  to  reopen  accounts 388 

transactions  after  guardianship  is  ended 389 

marriage  of  ward  in  ciiancery 390 

See  Guardian. 

WASTE 92 

See  Real  Estate. 
WIDOW.     See  Death. 
WIFE.     See  Husband  and  AVife. 
WILLS, 

freehold  interest  of  husband;  wife  cannot  devise      ....       99 

of  husband,  widow's  waiver,  election,  &c 206 

of  married  women 203,  n. 

will  of  person  under  guardianship 379,  380 

incapacity  of  infants 397 

WITNESSES.     See  Evidence. 

WORKMEN, 

English  legislation 456 

councils  or  courts  of  conciliation 456 

American  legislation 456 

trade  associations 456 


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